Earlier today, the Supreme Court issued its opinion in Learning Resources, Inc. v. Trump. By a 6-3 majority, the Court held that the phrase “regulate . . . importation,” as used in the International Emergency Economic Powers Act (IEEPA), does not include the power to impose tariffs.

As a result of the Court’s ruling, the following tariffs issued under IEEPA are invalid: (1) the “fentanyl” tariffs on Canadian-, Chinese-, and Mexican-origin goods; (2) the reciprocal tariffs; (3) the “free speech” tariffs on Brazilian-origin goods; and (4) the secondary tariffs on Indian-origin goods, which were recently terminated.

The Court’s opinion does not, however, address the issue of importer refunds. The Court of International Trade will now need to decide that issue in the first instance, and the question could make its way back to the Supreme Court on a subsequent appeal.

Preserving refund rights

While the refund question remains open, importers should take steps to preserve their refund rights. Absent new guidance from U.S. Customs and Border Protection (CBP), that can include:

• Filing protests once individual entries liquidate on the basis that the IEEPA tariffs were unlawfully imposed and collected.
• Filing suit in the Court of International Trade to cover all entries where the importer paid the IEEPA tariffs.

Although CBP has historically allowed importers to file Post Summary Corrections (PSCs) for unliquidated entries when tariff adjustments have applied retroactively, it is unlikely that CBP will approve PSCs removing the IEEPA tariffs from entries while the refund question is pending.