Update: On May 29, the Court of Appeals for the Federal Circuit issued an immediate administrative stay of the CIT’s judgment and injunction. The plaintiffs-appellees will have until June 5 to respond to the government’s motion for a stay. The government will have until June 9 to file a reply brief. The Federal Circuit will then consider the motion to stay the CIT’s judgment and injunction pending the outcome of the appeal. In the meantime, imports will continue to incur tariff-related charges.

On May 28, the Court of International Trade (CIT) declared two sets of President Trump’s tariff-related executive orders invalid as contrary to law: (1) the orders implementing the “fentanyl” tariffs on Canadian-, Chinese-, and Mexican-origin goods; and (2) the orders implementing the reciprocal tariffs. The CIT permanently enjoined each of the executive orders, and the government almost immediately filed notice of its appeal. The government also filed a motion to stay enforcement of the CIT’s ruling.

What tariffs are impacted by this ruling?

The ruling impacts:

  • The “fentanyl” tariffs on Canadian-origin goods (Exec. Order  No. 14193)
  • The “fentanyl” tariffs on Chinese-origin goods (Exec. Order No. 14195)
  • The “fentanyl” tariffs on Mexican-origin goods (Exec. Order No. 14194)
  • The changes to the de minimis exemption for Chinese-origin goods (Exec. Order No. 14195)
  • The reciprocal tariffs (Exec. Order No. 14257)
  • Any amendments or modifications to any of the executive orders above

What tariffs are not impacted by the ruling?

The ruling does not impact:

  • The Section 301 tariffs on Chinese-origin goods.
  • The Section 232 tariffs on aluminum and derivative products, automobiles, automobile parts, or steel and derivative products.
  • The pending Section 232 investigations on commercial aircraft, jet engines, and parts; copper; critical minerals and derivative products; medium- and heavy-duty trucks and truck parts; pharmaceuticals, pharmaceutical ingredients, and derivative products; semiconductors, semiconductor manufacturing equipment, and derivative products; or timber and lumber.

What happens next?

The government has already filed notice of its appeal to the Court of Appeals for the Federal Circuit, as well as a motion to stay enforcement of the CIT’s ruling until the conclusion of the appeals process.

Even if the CIT does not think the government is likely to succeed on its appeal, the court may still grant the stay to avoid future administrative issues for U.S. Customs and Border Protection (CBP) if the tariffs are ultimately upheld. As a practical matter, the court may see it as easier for importers to file corrected entry summaries to remove the tariffs, rather than requiring CBP to track entries that were imported without the tariffs and apply those retroactively.

The parties may also ask the Federal Circuit to expedite the appeals process.

Assuming a stay is not granted, the CIT is expected to issue the administrative orders to effectuate the permanent injunction by June 7. In the meantime, CBP will need to make updates to the Automated Commercial Environment (ACE), modify the Harmonized Tariff Schedule of the United States, and issue guidance to importers.

What’s the practical impact of the ruling today?

Until CBP issues guidance on the ruling, importers should anticipate that entries will continue to be processed with tariff-related deposits. Consistent with CBP’s approach under Executive Order 14289, clarifying which tariffs do not “stack” together, CBP may then require importers to file Post Summary Corrections to request tariff refunds.

If importers have impacted entries that may liquidate before guidance is issued, they should consider requesting that CBP suspend liquidation on those entries. If entries liquidate, protests may be required to recover tariff refunds.