U.S. LAW & GLOBAL TRADE RELATIONS.

The Trump administration has announced new Section 301 tariffs on Brazil. It has also just made what could be the first in a steady drumbeat of tariff news, announcing plans for a 10% tariff on top allies like the European Union and Canada and a 12.5% rate on other nations, including China. The USTR announced that 59 countries and the 27 member states of the EU had failed to counteract goods being made with forced labor and that the practice “burdens or restricts U.S. commerce” and is therefore ripe for future action under Section 301 of the Trade Act of 1974. Too bad the U.S. has not signed an important ILO convention outlawing forced labor.

The Trump admiration is also dragging its heels on tariff refunds — refusing and appealing Court of International Trade orders. The administration is also increasing tariff enforcement and criminal tariff evasion charges against importers. These newer actions are clearly a corollary of the new Tariff War (Part 2).

So the tariff wars are now on again. Good Luck with that, Mr. President. Too bad for the consumer and the U.S.

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Trump administration proposes 25% tariffs on Brazil despite extensive US trade surplus. Following “an investigation by the Office of the U.S. Trade Representative,” the Trump administration on Monday “proposed 25% tariffs on imports from Brazil, charging that the world’s 10th-biggest economy engages in trade practices that are ‘unreasonable’ and that ‘burden or restrict U.S. commerce. ” “Last year, Trump had slapped Brazil with a 50% tariff, mainly to protest its prosecution of Jair Bolsonaro for trying to overturn his electoral defeat in 2022.” But the “Supreme Court ruled in February that Trump overstepped his authority by using … the International Emergency Economic Powers Act … to impose sweeping tariffs on U.S. trading partners, including Brazil.” The administration relies on Section 301 of the Trade Act of 1974 in its current push to hit Brazil with new tariffs.” Scotus Blog (June 3, 2026).

Trump Begins Rebuilding His Tariff Wall, Citing Forced Labor. Trump administration made its “biggest move” yet toward rebuilding the system of tariffs that was “struck down by the Supreme Court” earlier this year. “Following an investigation into how trade partners handle goods allegedly produced by forced labor, a 10% tariff rate would apply to imports from Canada, Mexico, the European Union, Taiwan and the UK, among other places,” the Office of the U.S. Trade Representative announced. “Products from other major economies, including China, India, Japan, South Korea, Brazil and Switzerland, would be subject to a 12.5% levy.” Section 301 of the Trade Act of 1974. Scotus Blog (June 4, 2026).

“Trump Administration Turns to a New Rationale to Justify Old Tariffs — The administration has settled on a more legally and politically durable way to impose tariffs, but some say the focus on forced labor laws is merely a pretext for protectionism. the Trump administration unveiled part of its Plan B: a tariff of 10 percent to 12.5 percent on 59 countries and the 27-member European Union. The levies were intended to pressure governments that the United States says have not enacted or enforced laws against trading goods made with forced labor. Those tariffs could go into effect as soon as July, and they are unlikely to be the last ones. The administration is working on another slate of tariffs related to countries’ manufacturing practices that will presumably be added to the forced labor ones …. The new tariffs will be imposed under Section 301 of the Trade Act of 1974, a law that allows the president to issue tariffs to respond to other countries’ trade practices.” “Forced Labor and Section 301.” New York Times (Jue 4, 2026).

“Judge Richard Eaton of the U.S. Court of International Trade “took the unusual step of personally responding” in a letter to the Justice Department “to the Trump administration’s appeal of his order to refund $166 billion in tariffs the Supreme Court declared unlawful, calling the government’s filings ‘colorful’ and questioning its legal stance.” . “Eaton suggested that if the Justice Department succeeded in asking an appeals court to immediately intervene, it” would “discourage continuing progress” in the development of “an online claims system that has been processing at least $85 billion in refunds so far.” It is “rare for judges to directly push back against parties who appeal their rulings.” …. The U.S. Court of Appeals for the Federal Circuit “agreed to halt an order requiring the head of U.S. Customs and Border Protection (CBP) to testify next week about tariff refunds … until it resolves the government’s arguments” against the appearance. The U.S. Court of International Trade Judge Richard Eaton had demanded that CBP Commissioner Rodney Scott about the government’s work on tariff refunds. “Commissioner Scott’s testimony is necessary to ascertain if it is the Government’s policy to return all of the unlawfully collected duties either by complying with the court’s order, or by some other means.” Scotus Blog (June 5, 2026).

The Department of Justice’s recent False Claims Act settlement with Perfectus Aluminum illustrates the government’s continuing interagency focus on customs and tariff enforcement, and the related criminal indictment provides insight into conduct enforcers may associate with tariff evasion schemes. International Trade Law 360(June 6, 2026).

“Trump issued a barrage of trade actions this week as his administration tried to reimpose new tariffs on trading partners after America’s top court struck down the president’s duties …. The US is also working on a probe into industrial overcapacity and subsidies that, once completed, could hit a range of countries with levies. This week, it asked businesses to comment on its new plans to manage trade with China …. This week, they cut tariffs imposed on some farm and industrial machinery as they sought to protect American farmers and manufacturers from high costs…. The administration also issued a notice inviting businesses to comment on its so-called Board of Trade with China, as it tries to manage relations with the world’s second-largest economy.” “Trump Launches Tariff War.” Financial Times (June 6, 2026).

“As ever with Trump, there is not much point trying to find logic here. Yes, the forced labour accusations make little sense. But then neither did the original international emergency IEEPA tariffs struck down by the Supreme Court. And nor did the “Section 122” balance-of-payments tariffs that were imposed in February as a temporary replacement until summer. Like the IEEPA ones, they were struck down by the US Court of International Trade, though the federal appeals process will keep them around long enough to hand over the baton to the 301s and fresh “Section 232” national security tariffs on pharmaceuticals and who knows what else …. The US has a long history of legislating against forced labour in considerably more good faith than it is doing today. The use of import bans against goods made with coerced labour goes back to the 19th century. It was codified in the otherwise notorious Smoot-Hawley Act of 1930 and then over the past decade enforced and toughened up, being directed particularly against goods made by oppressed Uyghurs in the Chinese region of Xinjiang …. Trump’s abuse of forced labour provisions is one of the many depressing ways in which perfectly reasonable justifications for using loopholes in World Trade Organization rules (national security, labour standards) are being horribly misused ….  But thanks to Trump (and Biden), the world isn’t deliberatively moving towards a more systematic use of such exceptions than before. It is simply handing unscrupulous governments an excuse to do what they want.” “New Tariff Wars and Forced Labor.” Financial Times (June 7, 2026).

Journal of East Asia and International Law (2026)

— Yijun Institute of International Law (Korea) — 19 Journal of East Asia and International Law 243 (2026).

About the Author

Distinguished Professor of Law and International Trade Stuart Malawer holds a Ph.D. from the Dept. of International Relations at the University of Pennsylvania (Wharton School). Dr. Malawer has a J.D. from the Cornell Law School and a Diploma from The Hague Academy of International Law (Research Centre). He also studied at the Harvard Law School and St. Peter’s College at Oxford University. Professor Malawer was a member of the Virginia Governor’s trade missions to China, India, and Japan. Dr. Malawer was awarded the Hardy Cross Dillard International Law Award by the Virginia State Bar, in recognition of serving as Chairman of its International Practice Section and Special Editor of the Virginia Lawyer. Most recently, he published articles on the US-China trade litigation, Trump’s tariff and trade policies, and cybersecurity. Recent books have included Trump and Trade – Policy and Law (2021), Global Trade and International Law (2012), US National Security Law (2009), and WTO Law, Litigation and Policy (2007). Earlier books include Studies in International Law (1977), Essays in International Law (1986) and Federal Regulation of International Business (1980-1983). His articles have appeared in law journals from Harvard, Cornell, Vanderbilt, Virginia, Columbia and other leading journals. Professor Malawer served as the Director and Founder of the Graduate International Transactions Program at George Mason University (a masters program in international affairs). He was subsequently named the Distinguished Service Professor of Law & International Trade, as well as the Director of the Oxford Trade Program. This program was held annually in partnership with St. Peter’s College at Oxford and Geneva. The GMU Alumni Association named Professor Malawer the Distinguished Faculty Member of the Year. He was a gubernatorial appointee to the Virginia Economic Development Partnership and recently to the Virginia International Trade Committee. He may be contacted at: StuartMalawer@msn.com.

About the Authors 286

New article on Trump’s Tariffs, Refunds, Iran War and Chaos. (Journal of East Asia & International Law 2026).

jeail_v19n1_12.pdf

So the China – U.S. China Summit is finally over. As some teenagers used to say, this was a big nothingberger (at least for the U.S.). Seems so. Some loose agreements on Boeing and beef. Not much else. No assistance with the Iran War. Nothing bad happened. Next up for Xi. Meeting with Putin. Don’t expect much here either.

By the way, the Trump administration has just announced that $20 billion in tariff refunds have been made. It owes about $200 billion. Someome’s dragging it out — It recently appealed the trade court’s order to refund all wrongful tariffs arguing the court’s order amounts to an unlawful national injunction. It does not. (The Trump administration suggested that it needs $200b more for the Iran War.) Trump has just announced new tariffs on Brazil under Section 301 retaliation. Really?

The Trump administration just made what could be the first in a steady drumbeat of tariff news, announcing plans for a 10% tariff on top allies like the European Union and Canada and a 12.5% rate on other nations, including China. The USTR announced that 59 countries and the 27 member states of the EU had failed to counteract goods being made with forced labor and that the practice “burdens or restricts U.S. commerce” and is therefore ripe for future action under Section 301 of the Trade Act of 1974.

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“On Friday, a group of consumers seeking refunds for “costs passed on to them in the form of higher prices” before the Supreme Court struck down President Donald Trump’s signature tariffs sued Amazon.com Inc. “[I]n a proposed class action filed in federal court in Seattle,” they “alleged that the e-commerce giant collected hundreds of millions of dollars in unlawful tariff costs by raising prices on imported goods before the Supreme Court had ruled.” Although other companies are facing similar lawsuits, the Amazon case is unique because the company is not seeking tariff refunds from the government. The consumers behind the new suit claim that the company “seeks to curry favor with Trump by allowing the federal government to retain the funds.” Scotus Blog (5.18.26).

“So the big meeting between presidents Donald Trump and Xi Jinping didn’t produce a whole lot on the day. Since  the last face-off in October, the two have shifted from frontal tariff assault to hand-to-hand supply chain skirmishes. Moreover, they are promising mechanisms of trade and investment co-operation that could deliver partial truces, depending on political will ….   In any case, it seems pretty clear that Xi is determining the pace, after having tamed Trump’s aggression last year …. The US claimed some rather unimpressive downpayments in the form of promised purchases of Boeing aircraft (if anything, fewer than had been expected), plus some supposed Chinese pledges of agricultural procurement …. If Trump tries to imitate Reagan’s strategy, the outcome will probably be even worse. For one, it’s hard to imagine Trump’s pacts enduring or being designed well. Whatever you think of his policies, Reagan ran a somewhat serious administration, staffed by grown-ups on the trade and economics side to whom he delegated power to negotiate and implement complex agreements. Trump has an extremely short attention span, an incoherent world view ….  In terms of strategy and tactics, Xi will run rings round Trump. And if at some point Trump realizes the whole game could be up and we’ll be back to all-out trade war …. It is also notable that Reagan’s protectionism at an industry level was followed by a renewed push on liberalization at the macro level, especially with the Uruguay round that ended up creating the World Trade Organization. Former US president Richard Nixon had a similar arc, the aggressive economic nationalism of his early years giving way to a multilateral push for trade deals in the Tokyo round.” Trade Secrets (May 18, 2026).

“With some family gatherings, the best you can hope for is that no one gets drunk and starts a fistfight. Expectations when President Trump and China’s leader, Xi Jinping, met on Thursday and Friday were similarly low — and they were met …. The fact that the United States and China are each looking to weaponize their economic dominance means that any deal should really be time-limited …. To be fair, the United States and China didn’t pretend that they had done a lasting deal when their leaders met last week …. The two sides must find a way of preventing trade disputes from spiraling out of control.” “No Deal.” New York Times (May 19, 2026).

“The Chinese government sought to draw a line on trade tensions with the United States, saying that both sides had agreed not to raise tariffs further while signaling that it could retaliate if Washington did so again.” “China Warns on Tariffs – But Boeing and Beef.” New York Times (May 21, 2026).

“U.S Companies Shamed by Trump Tiptoe Into Tariff-Refund Race According to a Bloomberg analysis, “[o]nly about 5% of the 3,000 largest publicly traded US companies mentioned refunds in the context of President Donald Trump’s now-illegal tariffs in recent comments and regulatory filings.” Bloomberg noted that such companies are staying quiet about tariff refunds in hopes of reducing “the risk of political and legal jeopardy” that comes with claiming them. That risk became clear when President Donald Trump “paint[ed] refund backers as unpatriotic after the Supreme Court struck down” his signature tariffs. “Saying too much about refunds invites not just Trump’s scorn but also legal challenges from consumers clamoring for a piece of the payout.” Scotus Blog (May 26, 2026).

$20 billion in tariff refunds paid so far, with more on the way  …. In a Tuesday filing with the Court of International Trade, Brandon Lord, executive director of trade programs at the U.S. Customs and Border Protection agency, stated that the  –“Trump administration has refunded more than $20 billion so far in tariffs to importers and shippers … after the Supreme Court struck down the cornerstone of President Donald Trump’s trade policy in February.” Lord also said that a total of “[a]pproximately $85 billion” in refund requests “have been accepted for processing “Hundreds of companies have lined up to get their money back, including Costco, Walmart, Home Depot, Target, General Motors, Ford Motor Company, FedEx, UPS and DHL.” Scotus Blog (May 28, 2026).

“A federal trade court has ordered Rodney S. Scott, the head of U.S. Customs and Border Protection, to appear at a hearing next month on the Trump administration’s handling of roughly $166 billion in tariff refunds. The unexpected demand, issued on Wednesday, hinted at a judge’s ongoing concern that the government has not fully complied with a directive to return all of the money amassed under duties that were declared illegal by the Supreme Court earlier this year. At the heart of the matter are the so-called reciprocal tariffs that President Trump previously applied to imports from around the world …. The judge also cited concern about “millions” of entries for which the government has “not presented a proposal” for providing refunds …. The court and the government are far apart.” “Refund Chief to Appear Before ITC.” NYT (5.27.26).

On Friday, the Justice Department filed notice with the Court of International Trade that “it will appeal a judge’s authority to order across-the-board refunds of all tariffs ruled illegal by the US Supreme Court” to the U.S. Court of Appeals for the Federal Circuit. “At the heart of the dispute is whether the judge has authority to order refunds nationwide for all importers who paid tariffs issued under the International Emergency Economic Powers Act, or IEEPA, even if they did not file suit in the trade court. The US has suggested that the government need only refund importers who sue, and that the judge’s order is effectively a nationwide injunction that is barred by a recent Supreme Court ruling over birthright citizenship.” The Trump administration’s appeal could “inject legal chaos into a claims process that’s already underway.” Scotus Blog (June 1, 2026).

Paul Wiseman and Mauricio Savarese, Associated Press

Trump administration proposes 25% tariffs on Brazil despite extensive US trade surplus. Following “an investigation by the Office of the U.S. Trade Representative,” the Trump administration on Monday “proposed 25% tariffs on imports from Brazil, charging that the world’s 10th-biggest economy engages in trade practices that are ‘unreasonable’ and that ‘burden or restrict U.S. commerce. ” “Last year, Trump had slapped Brazil with a 50% tariff, mainly to protest its prosecution of Jair Bolsonaro for trying to overturn his electoral defeat in 2022.” But the “Supreme Court ruled in February that Trump overstepped his authority by using … the International Emergency Economic Powers Act … to impose sweeping tariffs on U.S. trading partners, including Brazil.” The administration relies on Section 301 of the Trade Act of 1974 in its current push to hit Brazil with new tariffs.” Scotus Blog (June 3, 2026).

The new two-fold question — Is Trump intentionally disregarding US law as to imposition of newer tariffs and is he intentional disregarding the War Powers Resolution concerning the continuing Iran war? Just announced — The Court of International Trade declared that Trump’s new universal tariffs of 10% under Section 122 of the 1974 Trade Act (balance-of-payments) are illegal. (But the Federal Circuit stayed pending appeal.) This is Trump’s second major tariff defeat in the federal courts. (Previously the S. Ct. declared illegal his IEEPA tariffs.) Trump is now 2 – 0 in the courts as to tariffs. Trump’s newer reliance on Section 301 and his argument that ‘over-capacity’ is actionable is economically and legally laughable. This will certainly not help Trump in the upcoming China summit with Xi. Especially since China has toughened its retaliatory economic legislation (including antitrust). By the way, Trump continues to thrash Supreme Court justices.

Trump is now planning to issue yet additional tariffs — This time under Section 301 of the 1974 Trade Act (unfair trade practices). So it continues. Sooner or later the federal courts are going to address Trump’s illegal use of force in Iran, so will Congress, hopefully,

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“A federal trade court (Court of International Trade) ruled that Trump didn’t have the authority to impose new global tariffs after a previous set of levies was struck down by the Supreme Court in February. The decision from the Court of International Trade invalidated Trump’s attempt to impose a new 10% tariff on goods from virtually every nation by invoking authority under Section 122 of the Trade Act. The court, in a 2-1 ruling, said the president’s new bid for sweeping tariffs didn’t satisfy the criteria specified in the trade law for when import surcharges are allowed. As a result, the court said, Trump’s proclamation “is invalid, and the tariffs imposed on Plaintiffs are unauthorized by law.” The ruling’s immediate impact might be limited. The 10% tariff under Section 122 was slated to expire in July, at which point the administration plans to pivot to different tariffs …. A 24-state coalition led by Oregon and two importers quickly filed lawsuits challenging the new levies, arguing Trump exceeded his authority once again …. After the 10% tariff under Section 122 expires in July, Trump’s team plans to replace it with tariffs under yet another legal authority: Section 301 of the Trade Act, which authorizes it to address unfair trade practices by other nations.” “Trump’s New Tariffs (Section 122) Ruled Illegal – Second Major Tariff Koss for Trump.” Wall Street Journal (May 8, 2026).

“A day after a federal court ruled against Trump’s latest global tariffs (Section 122), his administration returned to the drawing board on Friday, trying to preserve its powers to wage economic warfare in time for high-stakes trade talks with China …. Technically, the Court of International Trade only declared the president’s across-the-board, 10 percent tariff to be illegal. Otherwise, it did not issue an order forcing the government to stop collecting it from all importers, at least for now …. At the heart of the matter is Mr. Trump’s decision to invoke a trade power that no president had ever used. Known as Section 122 of the Trade Act of 1974, it permits the president to impose tariffs up to 15 percent for 150 days, but only in response to strict conditions, including a “balance of payments” crisis …. The new decision raised the odds that the administration could soon have to pay back the billions of dollars collected from its 10 percent tariff, on top of the $166 billion that the government already owes to U.S. importers from its last legal defeat …. Unlike the president’s other trade gambits, his use of Section 301 to apply tariffs was successful in the past, including on China. That left some analysts to conclude that Mr. Trump, while blemished, would still retain some leverage ahead of his trip to Beijing next week.” “Trump’s Tariff Defeat (Section 122) and China Talks.” New York Times (May 9, 2026).

“The partisan battle over authorizing the Iran War has shifted to one of semantics, as the sides haggle over a contentious deadline created by a Vietnam-era law. On Friday, the conflict hit the 60-day mark — a critical marker under the 1973 War Powers Act — and Democrats are using the milestone to fuel their efforts to force President Trump to end the military campaign against Tehran immediately, unless Congress explicitly approves it. Trump and his Republican allies are pushing back, arguing that the conflict never rose to the level of a “war,” precluding the need for congressional consent. They also maintain that, even if it did meet that distinction, the current ceasefire has effectively ended the shooting part of the war long before the 60-day threshold was met. The clash is renewing the age-old debate over the separation of powers when it comes to the use of military force. And it promises to continue for many weeks to come, as Democrats are vowing a strategy of forcing vote after vote on war powers resolutions, if only to put Republicans on record supporting a conflict that’s grown wildly unpopular with voters. “ War Powers Resolution and Iran. The Hill (May 2, 2026).

“With a flurry of Section 301 investigations under way, US trading partners should be deeply worried. Of the 19 deals the administration has negotiated since last summer, none have dispute settlement provisions. The US has also written off WTO dispute settlement since 2017, arguing that many of its trade actions are a matter of economic or national security and therefore out of bounds for WTO adjudication.” US Trading Partners, Tariffs and Rule of Law. Financial Times (April 28, 2026).

“The Trump administration has taken a novel approach as it looks for ways to issue new tariffs to replace the levies invalidated by the Supreme Court. It began a new trade investigation in March that targets 59 countries and the European Union with potential tariffs unless they pass laws that ban imports of goods made with forced labor …. Forced labor occurs in fields, factories and fishing vessels, and that import bans could risk missing where labor violations were actually occurring …. Some are questioning whether the administration’s measure is more of a pretext to impose tariffs that U.S. officials want to have in effect anyway, and whether foreign countries will be able to take actions to have the tariffs rolled back …. historic Section 301 investigation will ensure both that the perpetrators of forced labor practices cannot unduly profit from unfettered access to the American economy and that American workers are no longer unfairly undermined …. Others urged the United States to do a better job of enforcing its own rules against imports of goods made with forced labor, including a 2021 law that bans most products from Xinjiang …. The United States has a nearly century-old ban on imports made with forced, convict or indentured labor, as well as the 2021 law restricting imports from Xinjiang.” “More Trump’s Tariffs and Forced Labor.” New York Times (May 2, 2026).

“From an international law perspective, my judgment is that the attack was quite clearly illegal.  Under the United Nations Charter, states are prohibited from using force in international relations except in one of two circumstances: (1) where the state acts in self-defense if it has sustained an “armed attack” by its adversary; or (2) where the U.N. Security Council has authorized the use of force.  The Security Council has not, of course, authorized the use of force against Iran.  In terms of self-defense, Iran did not carry out an armed attack against the United States. With regard to the right of self-defense, there are international legal scholars—and I count myself as a member of this camp—who believe that states can exercise the right of self-defense not only after they have sustained an armed attack, but where they face an imminent threat of attack.  This is referred to by international lawyers as “anticipatory self-defense,” and President Trump gestured to this concept by stating that the U.S. attacks against Iran were aimed at “eliminating imminent threats from the Iranian regime.”  The problem with this position is that even if there is a right of anticipatory self-defense, the predicate condition is strict; it requires an imminent threat of an armed attack by the adversary.  The notion that Iran presents a general security threat to U.S. interests does not constitute a threat of imminent attack.  Nor does the possibility that Iran might at some point in the future acquire either nuclear weapons or intercontinental missiles capable of reaching the U.S. homeland amount to a threat of an imminent attack.” “Legality of Iran War.” Stanford (March 3, 2026).

“Trump is already using other authorities to reimpose many of the tariffs that were just struck down. The reality is that neither the judiciary nor the executive branch can clean up this mess on its own. Instead, Congress must actively reclaim its constitutional role as the ultimate arbiter of American trade policy by overhauling legislation on tariffs. This means giving the president new, selective tariff powers to solve twenty-first-century challenges while paring back existing laws to prevent executive overreach and abuse. The goal should be to create a streamlined set of tariff authorities tailored for specific economic problems and tied to concrete, objective criteria for what is considered a national security threat—criteria dictated by Congress rather than presidential discretion …. There is a place for tariffs in American foreign policy. When used effectively, they can advance a wide variety of economic and national security goals ….  Finally, the repeated repurposing of executive branch tariffs to reflect presidential preferences rather than congressional intent undermines the rule of law and separation of powers. Applying statutes in ways that are misaligned with their original purpose creates a permission structure for deviations from the constitutional order that can be repeated in the future …. The judiciary can slow this erosion process. But as Trump’s dance with the Supreme Court over the IEEPA shows, it cannot stop it …. Congress must also narrow the scope of existing tariff authorities so that they leave less room for executive discretion.” Congress and Trade. Foreign Affairs (May 2026).

“Since the Supreme Court struck down Trump’s International Emergency Economic Powers Act tariffs in February, administration officials have been working to revive the levies using different trade laws. They implemented a 10% across-the-board tariff, which the Court of International Trade held illegal on Thursday. But the White House is using another strategy, which descends through the fjords of Norway and puddles of Bangladeshi cement into economic absurdity. In mid-March, the administration announced it would investigate 16 economies under Section 301 of the Trade Act of 1974, which allows Washington to impose tariffs on countries with policies that burden or restrict U.S. commerce ….  The administration insists a country should make only what it needs. “Across numerous sectors, many U.S. trading partners are producing more goods than they can consume domestically,” Mr. Greer’s office said in a statement. “This overproduction displaces existing U.S. domestic production or prevents investment and expansion in U.S. manufacturing production.” There is nothing excessive or even unusual about a country producing more of a good than its economy needs. In 2025, Boeing delivered roughly two-thirds of its commercial aircraft to customers outside North America, while U.S. almond farmers shipped three-quarters of their crops abroad. These industries aren’t abnormal or predatory. They are successfully serving a global market …. It’s true that if a country produces something efficiently and at low prices, American competitors can lose out. That is a reason for American businesses to improve productivity and for the government to have well-run social safety nets and worker support programs. In cases where countries artificially inflate production, the government can respond with U.S. trade law, World Trade Organization rules and bilateral agreements. But the Constitution assigns authority over tariffs to Congress. It doesn’t empower presidents to set them by decree. The Supreme Court nixed Trump’s emergency tariffs earlier this year, finding that the administration had stretched the law past its breaking point. “Over-Capacity Excuse – Really, Not Good.” Wall Street Journal (May 11,2026).

“In a single week, Beijing killed a U.S. tech deal and ordered Chinese companies to defy American sanctions on domestic oil refiners—two unprecedented moves, both terse, both wielding tools that had been advertised for years but never used. Welcome to the era of Chinese regulatory aggression, one Beijing has spent the better part of a decade promising …. While the tool kit grew, the willingness to use it didn’t keep pace. Analysts called it deterrence. Skeptics called it bluff. Last week settled the argument …. No remedies were offered to Meta, no extended antitrust analysis, no diplomatic face-saving …. Compliance with Washington has just become a litigable offense in Beijing. Every multinational touching Chinese oil flows now faces a bilateral liability problem …. What’s clear now is that the gap between threat and action has closed. The next phase of the U.S.-China economic conflict won’t be fought with threatened tools, but rather, with the tools Beijing is now using.” “China’s Uses Newer Trade Sanction.” Wall Street Journal (May 5, 2026).

“President Donald Trump criticized Justices Neil Gorsuch and Amy Coney Barrett by name in a lengthy Sunday afternoon Truth Social Post, asserting that their vote to strike down his tariffs hurt the country. “I ‘Love’ Justice Neil Gorsuch! He’s a really smart and good man, but he voted against me, and our Country, on Tariffs, a devastating move. How do I reconcile this? So bad, and hurtful to our Country,” the president wrote. “I have, likewise, always liked and respected Amy Coney Barrett, but the same thing with her. They were appointed by me, and yet have hurt our Country so badly!” Trump concluded, “Well, maybe Neil, and Amy, just had a really bad day, but our Country can only handle so many decisions of that magnitude before it breaks down, and cracks!!! Sometimes decisions have to be allowed to use Good, Strong, Common Sense as a guide.” Scotus Blog (May 12, 2026).

“The president has lost something important to him, which is the ability to threaten tariffs on a Friday and impose them on a Monday. ” Another U.S. court compounded the misery for the president last week by slapping down global tariffs of 10 per cent he announced in February to replace the duties thrown out by the Supreme Court. The government is appealing against the decision …. The problem for the U.S. president is that resistance is building in Congress, the tariffs are unpopular ahead of already challenging midterm elections and replacement measures may fall far short of providing him with the room for maneuver he seeks on the world stage …. During his two terms in office, he has tested the limits of what tariffs can accomplish — whether to rebalance the economy and revive American manufacturing, raise tens of billions of dollars in revenues, or bolster the power of the U.S. and its president …. Trump has still changed the face of U.S. trade policy …. Trump has also lost — for now at least — much of the discretion he had over the tariffs that the Supreme Court disallowed, which were based on the U.S.’s 1977 International Emergency Economic Powers Act …. Now, however, the president’s ability to threaten other countries with instant economic harm is hampered, hitting the personalized use of the tariffs of which he had become so fond …. One key restraint on Trump’s tariff policy is the impact on business — and ultimately on the stock market whose rises he celebrates and whose falls he seeks to avoid …. But the current complexity of the tariff schemes is adding to businesses’ frustration. They must now use a raft of specialized codes to comply with tariffs and qualify for exemptions — as well as calculating value at different parts of the production process and tracing the origin of parts. Business is not alone in its exasperation at the byzantine nature of Trump’s emerging tariff system …. The U.S. president can still impose higher duties on products such as cars and semiconductors, where tariffs are issued under a different legal authority from the one struck down by the Supreme Court. Such areas are governed by section 232 of the Trade Expansion Act of 1962, which allows the president to hit specific sectors with levies for national security reasons.” “Trump Loses his Trade Superpower.” Financial Times (May 12, 2026).

“On Tuesday, the U.S. Court of Appeals for the Federal Circuit “temporarily paused a ruling” from the U.S. Court of International Trade “declaring Trump’s global 10-percent tariffs illegal, granting a government request to suspend the decision pending appeal  ….“In its motion for a stay, the Trump administration argued that the CIT’s decision should be stayed pending the full run of government appeals – up to the Supreme Court, if necessary. It argued that if it issued refunds on the 10-percent global tariff, only to have an appeals court uphold its position, it would be unable to pursue economic redress.” But on Tuesday, the Federal Circuit “only granted an administrative stay” which will be in place “while the court considers the motions for a stay pending appeal.” Trump imposed the tariffs at the center of the current dispute “in February, shortly after the Supreme Court struck down many of his global tariffs.” Scotus Blog (May 13, 2026).

New Article — Malawer, “Trump’s Tariffs — Chaos Continues.” Journal of East Asia and International Law (2026).

     Immediately after the Supreme Court invalidated Trump’s IEEPA tariffs he imposed new tariffs under Section 122 of the Trade Act of 1974, which allows tariffs for balance-of-payments reasons. This is now being litigated in new cases. Trump’s earlier tariffs have resulted in a surge of tariff fraud by importers. Who will now be able to file claims using a new CBP computerized tool. So it seems that Trump is continuing his weaponization of tariffs and perhaps delaying refunds — who knows for what real purposes — and involving obvious and unforeseen consequences.

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“Increases in tariffs have raised the incentive to avoid them, especially since penalties for breaking the law are rare. Some U.S. companies …. The Trump administration is trying to step up efforts to combat trade fraud, but it is still woefully outmatched by the challenge …. Altering the valuation of Chinese goods means that U.S. statistics may exaggerate a recent trend in which trade with China appeared to be declining. On paper, the U.S. trade deficit with China and imported Chinese goods both plummeted by nearly a third last year.” Swanson, “Fraud and Escaping Tariffs.” New York Times (April 7, 2026).

“States and small businesses challenged the 10 percent tax on many imports that President Trump imposed after the Supreme Court struck down a previous slate of tariffs …. The legal war over President Trump’s tariffs is far from finished. A little more than a year after Trump rolled out an initial slate of punishing yet illegal duties, his administration returned to court on Friday to defend the new 10 percent tax that the president has imposed on most imports. Trump announced the wide-ranging tariffs in late February, hours after the Supreme Court struck down the original, country-by-country rates that had served as the bedrock of his global trade war. Much as before, he applied the duties in a novel way, using a little-known portion of a decades-old trade law that no other president had ever invoked. The result was a new legal drama with familiar stakes …. Trump imposed his new tariffs under Section 122 of the Trade Act of 1974, which allows the president to apply a tax on imports of up to 15 percent for 150 days. Those duties are subject to strict limits: The president may tax imports only temporarily, as a way of dealing with “large and serious United States balance-of-payments deficits” and situations that present “fundamental international payments problems” …. From the beginning, Mr. Trump had envisioned the across-the-board tariff as a way to buy time for the administration to conduct investigations into countries’ trade practices. It launched those inquiries using another provision of the same 1974 law, known as Section 301, which allows the president to impose tariffs if the government determines another nation is behaving unfairly.” Romm, “Trump End Heads to Court.” New York Times (April 10, 2026).

“The U.S. Customs and Border Protection revealed that “[I]mporters seeking tariff refunds will now be able to begin filing their requests,” which will kick off “what could become the largest repayment by the US government in its history,” CBP created the new system for seeking tariff refunds in response to “the February ruling by the US Supreme Court that threw out duties that President Donald Trump had imposed using emergency powers.” The Court of International Trade has “ordered the federal government to refund as much as $170 billion, plus interest, paid by roughly 330,000 importers.”  “Tariff Refund Tool to Start.” SCOTUS (April 14, 2026).

     A year since the “Liberation Day Tariffs” were announced, the war with Iran is making the trade war more difficult — Even more so after the recent Supreme Court decision declaring those tariffs illegal.  The trade war has not increased factory employment and only threatens us with more inflation. The Iran war has not helped. Many experts consider it illegal and involving war crimes. President Trump is continuing to impose new tariffs. Most recently under national security Section 232. All of this will certainly play out in the midterm elections. We’ll see ……

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“The real war (with Iran) makes the trade war harder to win.” M. Lynn, Trump is breaking an axiom of war. Why no one warn him. Washington Post (March 24, 2026.  

“President Trump’s relationship with the Supreme Court has never been more toxic. Now, it risks getting worse. After the court’s rejection of Trump’s tariffs provoked a new level of hostility from the president, the justices are set to consider a pillar of his immigration crackdown: limiting U.S. citizenship. Trump seems to be bracing for defeat.” J. Romoser, Birthright Citizenship Case Pushes Trump’s Relationship With Supreme Court to Brink. Wall Street Journal (March 29, 2026).

“One year after President Donald Trump stood in the White House Rose Garden and announced the highest U.S. tariffs (Liberation Day Tariffs) in nearly a century, the number of factory jobs is down and inflation is up.” D. Lynch, Trump Has Reshaped the Global Economy – With Mixed Results. Washington Post (March 29, 2026).

“Now, almost exactly a year after President Trump declared “Liberation Day,” companies of every size are wrestling with uncertainty about when, how – and even if – they will get refunds.” L. Radnofsky, L. Wheeler and S. Nassauer, Tariffs put businesses in crisis. Waiting for the refund could be worse. Wall Street Journal (April 1, 2026).

“The U.S. will impose tariffs of as much as 100% on branded pharmaceuticals, the White House said Thursday, though nations or drugmakers that strike deals with the Trump administration or commit to build manufacturing facilities in the U.S. can receive lower levies …. The pharmaceutical tariffs will be imposed under Section 232 of the Trade Expansion Act of 1962, which allows the president to levy tariffs to address national-security risks. Those are separate from Trump’s so-called reciprocal tariffs, which the Supreme Court struck down in February, and the 10% global tariff that Trump imposed to replace the invalidated levies.” G. Bade and X. Martinez, Trump administration unveils up to 100% tariff on branded drugs. Wall Street Journal (April 2, 2026),

“More than 100 experts on international law have signed an open letter expressing “profound concern” about what they see as “serious violations of international law and alarming rhetoric” by the United States, Israel and Iran in the war …. The war as a whole has been broadly denounced in the United States as illegal by critics who point to its lack of authorization from Congress or the United Nations Security Council …. The experts’ letter expressed particular concern over evidence that a U.S. missile struck a girls’ elementary school …. The strike likely violates international humanitarian law, and if evidence is found that those responsible were reckless, it could also be a war crime.” A. Taub, Legal experts express concerns over ‘violations of international law’ in the war. New York Times (April 2, 2026), 

VIRGINIA LAWYERS WEEKLY (March 23, 2026)

                                                                https://valawyersweekly.com/

                                                      Volume 40, No. 43, Page 3 (March 23, 2026)

TRUMP’S TARIFF AND TRADE POLICY – REFUNDS AND CHAOS.

                                                             Stuart S. Malawer, J.D., Ph.D.

The United States faces a staggering bill: more than $200 billion in tariffs that the Supreme Court has ruled were illegally collected. What began as an improvisational tool of political pressure has evolved into a sprawling legal and financial crisis. Courts, businesses, and states are now scrambling to untangle a mess that threatens supply chains, trade credibility, and the rules-based system the country once championed.

Litigation is proliferating on multiple fronts. States have sued the federal government. Importers—many large retailers—have sued for reimbursement. Smaller retailers, in turn, are filing suits against the original importers of record in so-called consumer actions. Plaintiffs are seeking class-action status, potentially multiplying government liability and drawing still more businesses into the fray.

This outcome is hardly accidental. It is the predictable consequence of weaponing tariffs as a tool in geopolitics and geoeconomics. The effects are already being felt in states such as Virginia, which depend heavily on port traffic, agricultural exports, imports (fertilizers) and foreign investment.

During his presidency, Trump wielded tariffs less as part of a coherent trade policy and more as a blunt, often impulsive instrument of personal pique and political pressure. The result was an unpredictable tax on American businesses and consumers—one that rattled supply chains, roiled financial markets, and strained alliances. Now the bill is coming due amid heightened economic and political uncertainty.

Global events, such as war with Iran, add further volatility to oil, gas, financial markets, and global business strategies, amplifying the disruption beyond the tariff wars themselves.

The legal battle over tariff refunds is intensifying. States and private firms have filed a stream of suits demanding that the government comply with court orders requiring the return of unlawfully collected tariffs, immediately. The administration’s response—primarily through the Departments of Treasury and Justice—has consisted largely of procedural delays. Congress, despite periodic warnings to reclaim its constitutional authority over trade and taxation, has remained on the sidelines.

Federal courts have recently served as a critical check on the executive’s overreach in several areas, for example, use of the national guard and immigrant detention policies.  The U.S. Supreme Court ruled against the administration’s global tariffs, despite public attacks on the justices. Subsequently, the U.S. Court of Appeals for the Federal Circuit refused to stay refunds and returned the matter to the U.S. Court of International Trade, which ordered that refunds proceed. The Justice Department has sought additional delays, buying time while aggravating uncertainty for consumers, businesses and states alike. The U.S. Court of International Trade is now the center of this litigation.

Meanwhile, the administration has explored new legal pathways to impose even newer tariffs despite the Supreme Court decision. A new 20% tariff was imposed under Section 122 of the Trade Act of 1974, which allows temporary duties to address balance-of-payments problems. But the United States does not face a true balance-of-payments crisis. While the country runs a significant trade deficit, its overall balance-of-payments deficit—including international investment flows—is modest, a distinction the administration ignored.

Other statutory avenues remain also available to the president. Section 232 of the Trade Expansion Act of 1962 allows tariffs on national security grounds, while Section 301 of the Trade Act of 1974 authorizes duties following investigations into unfair trade practices, which the president just initiated against 16 of our trading partners. Both mechanisms, however, involve procedural requirements and institutional reviews, making them far less nimble than the International Emergency Economic Powers Act, which was invoked by Trump and struck down by the Supreme Court. Traditional trade remedies—anti-dumping, countervailing duties, and Section 201 “escape clause” actions—also remain on the books for specific economic contingencies.

An entire legal and financial ecosystem is emerging around this tariff turmoil. Law firms are developing specialized practices devoted to tariff refunds, customs liquidation procedures, and litigation strategies tied to evolving court rulings. Hedge funds are purchasing claims from importers, effectively creating a secondary market that bets on eventual recovery of tariff payments.

From the perspective of someone who has spent decades teaching international trade law and national security law, the misuse of statutory trade provisions for geopolitical theatrics is deeply troubling. Tariff laws were designed to address specific economic concerns—unfair trade practices, national security risks, or balance-of-payments crises—within a broader, rules-based multilateral trading system. They were not meant to serve as a president’s all-purpose, often whimsical, geopolitical instrument. Yet that is precisely what they have become.

The broader consequences of Trump’s actions are only beginning to unfold. Massive refund liabilities, new tariffs imposed through alternative legal channels, unsettled trade agreements, and disrupted supply chains.  These are already injecting instability into state, national, and global commerce. The ripple effects extend beyond domestic and international markets, affecting diplomacy, investment, global stock markets, and global economic development. The Iran war will most certainly greatly exacerbate the global chaos.

As these tariff and trade disputes continue to wind through U.S. courts, trade and tariff policies are becoming a volatile issue in upcoming midterm elections. What began as a strategy of economic brinkmanship could ultimately become a significant political liability—not only for the president who embraced it but also for lawmakers who failed to check it.

The United States once prided itself on maintaining a predictable, rules-based trading system grounded in both domestic and international law. That system is now at risk. If trade policy, involving both tariffs and trade sanction, becomes an instrument of improvisation rather than law, the consequences will extend far beyond tariffs—to diplomacy, investment, and global economic leadership. Rebuilding confidence will require rejecting unilateralism and protectionism and recommitting to the international system the United States helped construct and led in the aftermath of the last century’s economic and political crises of the Great Depression, World War Two and the Cold War.

I remain convinced that, with rational policies based in reality, discipline and adherence to law, it is possible to restore that system—and with it, U.S. credibility and leadership on the global stage.

Stuart S. Malawer, J.D. (Cornell), Ph.D. (Penn), is the distinguished service professor of law and international trade emeritus in the Schar School of Policy and Government at George Mason University. He is a former chairman of the International Practice Section of the Virginia State Bar and has been honored by a Virginia Senate resolution for public service upon his retirement and the Virginia Supreme Court for his pro bono legal work. Previously, he received George Mason University’s Distinguished Faculty Member of the Year Award. Dr. Malawer is a former gubernatorial appointee to the Virginia Economic Development Partnership Board of Directors and the Advisory Committee on International Trade and has been a delegate on various Virginia gubernatorial trade missions to Asia. He is a member of the Bar of the U.S. Court of International Trade. StuartMalawer@msn.com.

Stuart S. Malawer, J.D. (Cornell), Ph.D. (Penn), is the distinguished service professor of law and international trade emeritus in the Schar School of Policy and Government at George Mason University. He is a former chairman of the International Practice Section of the Virginia State Bar and has been honored by a Virginia Senate resolution for public service upon his retirement and the Virginia Supreme Court for his pro bono legal work. Previously, he received George Mason University’s Distinguished Faculty Member of the Year Award. Dr. Malawer is a former gubernatorial appointee to the Virginia Economic Development Partnership Board of Directors and the Advisory Committee on International Trade and has been a delegate on various Virginia gubernatorial trade missions to Asia. He is a member of the Bar of the U.S, Court of International Trade. StuartMalawer@msn.com.

    One thing is sure — the refund of over $200 billion dollars of illegally collected tariffs is going to be very, very messy, very political and not easy. Actions have been filed by importers (retailers) against the U.S. government and by retailers against the initial importers of record (‘consumer suits’). Some suits are asking for class action status.

    Trump’s weaponization of tariffs, as part of his undisciplined attempt at geopolitics and geoeconomics, is truly baffling and harmful to the U.S. consumer and the U.S. and global economies. And it continues.

     (The Iran war is another story that certainly complicates a great deal, and may very well have even have a greater impact on the global economy and politics than Trump’s ill-conceived global tariffs. The Iran war raises many statutory, constitutional ‘and international law questions. Is the war even lawful? Undoubtedly, global business strategies are now in a flux.)

     Most recently states and private firms have sued the Trump administration concerning these illegally collected tariffs (taxes) and court-ordered refund. Yet the administration is still seeking delays. 

     The Appeals Court for the Federal Circuit initially denied a delay and sent the matter back to the Court of International Trade, which has ordered payments to be made immediately.  The U.S. Department of Justice has asked for a delay, once again, and it has been granted. The focus of litigation is now the U.S. Court of International Trade.

     States have now sued the administration concerning the imposition of new tariffs of 15% – 20% under Section 122 of the 1974 Trade Act (‘balance-of-payments’). There is actually a very small deficit in the balance-of-payments compared to balance-of-trade — Which Trump mistakes. The former incorporates the trade balance plus international investment flows. Trump just announced new investigations under Section 301, alleging overcapacity and seeking retaliatory tariffs as well as under Section 201 and forced labor provisions (Section 307, 1930 Tariff Act).  

      This messy and prolonged process (involving refunds and the liquidation process) and new administration efforts to circumvent the court decisions — is starting a whole new legal industry and practice groups within law firms as well as a secondary market for hedge funds snapping up importer’s claims.

     This refund issue, new tariffs, uncertain trade agreements, disrupted trade flows and trade policy generally will certainly become a significant issue in the midterms — To the dismay of voters, Trump and his congressional supporters.

………………………………….

“Trade negotiations between Washington and Beijing during President Trump’s first term often felt like an existential clash of economic models. Recent talks are more like the management of a fragile status quo …. In other words, the primary goal now is to rebuild the old rates that a recent Supreme Court ruling dismantled. These new 301 probes essentially provide the administration with the necessary legal authority to restore tariff levels to what China had already grown accustomed to during the truce.” “China-U.S. “ Wall Street Journal (March 17, 2026).

“The Trump administration on Wednesday announced a new trade investigation into unfair trading practices by 16 of America’s largest trading partners, as it works to resurrect a system of tariffs recently struck down by the Supreme Court. The trade investigation will look into what the administration called “excess capacity” in the factory sectors of foreign countries, which it said had resulted in overproduction and large and persistent U.S. trade deficits with those nations. The investigation will target China, the European Union, Singapore, Switzerland, Norway, Indonesia, Malaysia, Cambodia, Thailand, South Korea, Vietnam, Taiwan, Bangladesh, Mexico, Japan and India, Jamieson Greer, the United States Trade Representative, told reporters on Wednesday …. More trade investigations are on the way. potentially into issues including digital services, pharmaceutical pricing and unfair trade in sectors like rice and seafood …. The administration is pursuing a patchwork of actions to replace the tariffs that were rejected by the Supreme Court …. (These actions come as Trump prepares to travel to China at the end of the month to discuss trade relations and other issues with Xi Jinping.”  “New Trump Tariffs (Section 301 ‘Retaliation’).”  New York Times (March 12, 2026).

“During a roundtable at the White House, President Donald Trump again criticized the Supreme Court, “voicing deep frustration with ‘a number’ of recent decisions that have included the rejection of his signature tariff policy ….  “I think the Supreme Court ought to be ashamed of itself for a lot of reasons, ok?” “I got to live with these people. And I say this … and they’ll only vote bad, and I couldn’t care less at this point. They have hurt this country so badly because they haven’t had the guts to do what’s right.” In a filing with the U.S. Court of International Trade, Brandon Lord, executive director of U.S. Customs and Border Protection’s trade policy and programs directorate, explained that “the CBP is working on a new system [for tariff refunds] that will simplify the process. He said it should be ready in 45 days and require ‘minimal submission from importers,” “The filing comes after a judge ordered the government to start paying back all importers the illegal tariffs they paid – with interest.” SCOTUS BLOG (March 9, 2026). (Per the government’s request the CIT granted a short delay recently. SCOTUS BLOG (March 10, 2026).

“Although the ruling in Learning Resources v. Trump was a landmark one, it left a variety of questions open …. New challenges to the Trump administration’s invocation of Section 122 have already been filed in the CIT. One such lawsuit, filed by a group of states, contends that Trump “has not met the statutory prerequisites” to use the law. “Section 122,” the states write, “cannot be invoked merely to address trade deficits on their own, and the President does not have the discretion to use clearly erroneous propositions about terms of art to support his tariffs” …. The Trump administration it would begin investigations of 15 countries and the European Union under another provision of the Trade Act of 1974, Section 301(b) …. Six justices agreed that IEEPA did not give Trump the power to impose the tariffs at the center of the dispute. But only three of those justices – Roberts, Gorsuch, and Barrett – relied on the major questions doctrine, the idea that if Congress wants to give the executive branch the authority to make decisions of vast economic or political significance, it must do so clearly. And across the court, there were a variety of disagreements about the scope and application of that doctrine.”  “Remaining Questions after S. Ct. Case.” Scotus Blog (3.18.26).

“The Liberty Justice Center, “[a] libertarian public-interest firm that helped topple Trump’s emergency tariffs at the Supreme Court,” filed a new suit. The firm is representing “a new group of businesses who say they shouldn’t have to pay Trump’s latest tariffs,” including Burlap & Barrel and Basic Fun! The businesses contend that Section 122 of the Trade Act of 1974, which allows for tariffs “addressing balance-of-payments deficits,” cannot be used to impose tariffs “now that the U.S. has moved to a floating exchange rate.” Scotus Blog (3.11.26). “In a Thursday court filing with the U.S. Court of International Trade, the U.S. Customs and Border Protection, said the “government’s work to build a four-part system to refund $166 billion in illegal tariff collections with interest is between 40% and 80% complete.” CBP did not say how quickly refunds would be paid. More than 330,000 importers paid the tariffs on 53 million shipments and only around 21,000 were registered with its system to receive a refund, according to a court filing last week …. In December, Costco sued the Trump administration over its tariffs. A Costco shopper in Illinois has now sued the retail giant in an attempt to secure refunds for U.S. customers.”  Scotus Blog (March 13, 2026).

“The Trump administration on Thursday continued to “resurrect” the system of tariffs that was struck down by the Supreme Court by initiating “a sweeping trade investigation targeting dozens of countries over their trade policies on goods made with forced labor ….  It was the second investigation (Section 307 of 1930 Tariff Act) announced last week, following one focus[ed] on excess production in the factory sectors of more than a dozen major trading partners …. The forced labor investigation will target 60 economies, including Algeria, Canada, Norway, Saudi Arabia, China and the United Kingdom, as well as the 27-country bloc of the European Union.” Scotus Blog (March 16, 2026).

“Trump last month turned to Section 122 to reimpose his border taxes after the Supreme Court struck down his emergency tariffs. Section 122 lets him impose tariffs as high as 15% for up to 150 days to address “large and serious balance-of-payments deficits.” …. But as the AGs’ lawsuit notes, “Section 122 expressly differentiates between ‘balance of payments’ and ‘balance of trade.’” The balance of payments consists of trade as well as foreign capital and financial investment inflows. Including the latter, the U.S. balance of payments deficit was a mere $53 billion in 2024. Section 122 is an artifact of the bygone Bretton Woods fixed-rate exchange system. The U.S. in the early 1970s “had experienced a series of large deficits in its balance of payments related to the fixed-rate exchange system, which obliged foreign central banks to buy dollars to prevent their currencies from appreciating,” the lawsuit accurately recounts …. Because the Constitution grants Congress the power over trade and taxes, the President is “seizing power from Congress unconstitutionally,” the AGs (in  their new law suit in the CIT) argue. They are asking the U.S. Court of International Trade to enjoin the tariffs so businesses don’t have to pay them while litigation plays out and later seek refunds if higher courts rule them unlawful.” “The Legal Case Against Section 122 Tariffs.” Wall Street Journal (March 9, 2026).

“The US government has declined to refund tariffs the Supreme Court has ruled illegal …. Trump administration tries to hold on to as much as $150bn in disputed levies. Customs officials are rejecting companies’ attempts to reclaim duties imposed under emergency powers invoked by Trump, leaving businesses in limbo and pushing more cases into court …. Companies submit entries to US Customs and Border Protection detailing products to be imported and relevant tariff codes, among other things. They pay an initial estimated sum, after which CBP finalizes the amount and automatically “liquidates” the entry 314 days later, though it may close entries manually before then …. As part of a process called “Post Summary Correction”, companies can correct submissions to CBP and retroactively amend those that have not been officially closed. Many companies have rushed to submit PSCs to strike IEEPA tariff codes from their shipment entries and receive refunds.  But CBP is rejecting their submissions. It is also suspending protests that companies are filing to secure IEEPA tariff repayments the CBP has already liquidated …. Some lawyers have advised their clients to file lawsuits as well as paperwork with the CBP to try and reclaim their tariffs through the administrative process …. But CBP argued in court this week that not finalizing IEEPA tariff payments would be a task of “unprecedented scale and scope” and that it lacked the “functionality” to change this process.” “Refunds Denied.” Financial Times (March 7, 2026).

“A federal judge ordered the Trump administration to take the first steps toward issuing more than $100 billion in potential tariff refunds, ratcheting up a legal battle over a roster of sky-high duties that the Supreme Court deemed illegal. The order, issued by Judge Richard K. Eaton of the United States Court of International Trade, amounted to an early victory for the thousands of businesses that have already sued to recover the taxes they paid, plus interest …. In the initial round of lawsuits over its tariffs, the Trump administration had indicated that it would issue refunds in the event that the president’s tariffs were invalidated. But Trump and his aides have shifted to a more defiant tone since the Supreme Court dealt a decisive blow to one of the most potent, flexible weapons in the president’s trade war. The administration has signaled that it intends to delay or contest repayment of the money, arguing at times that refunds could create a fiscal crisis for the United States …. Generally, tariffs are due when a product enters the United States. But the exact amount that an importer owes is finalized over a roughly yearlong process known as liquidation. Purchasers may file formal protests with the federal government if they dispute what the government says they owe.” “Tariff Refunds Get a Victory.” New York Times (March 6, 2026).

“Democratic attorneys general in two dozen states, including California and New York, are filing a lawsuit to block President Trump’s new tariffs, two weeks after a new round of taxes and duties on imports were issued following a Supreme Court ruling that found the White House had overstepped its authority.” N.Y. Post (3.6.26).

“The Trump administration’s effort to reimpose tariffs struck down by the Supreme Court has prompted a new lawsuit. [S]ome two dozen states challenged” the administration’s “planned 15% tariffs on much of the world,” contending that Section 122 of the Trade Act of 1974 does not give the president the authority to impose “sweeping import taxes.”  The states argue that Section 122 “was intended to be used only in specific, limited circumstances” – to address what Section 122 describes as “fundamental international payments problems” related to the U.S. dollar’s relationship to gold. “But the dollar is no longer linked to gold, so critics say Section 122 is obsolete.” Many of the states involved in the new lawsuit were also involved in the successful challenge to Trump’s previous tariffs …. Ongoing battles over tariff refunds have given “[o]ne of the most obscure courts in America … a rare moment in the sun.” “Most lawyers know little, if anything, about the Court of International Trade. Fewer than 300 cases were filed there annually in 2023 and 2024,” “The court generally referees disputes over how imported goods are classified and whether they are being dumped into the U.S. at below fair-market value. Until recently, hot cases at the court focused on issues such as Amazon’s contention that video doorbell cameras should be classified as digital still-image video cameras rather than transmission devices.” But now, “there are more than 2,000 lawsuits on the trade court’s doorstep from businesses suing to recoup what they paid” in tariffs.” SCOTUS Blog (3.6.2026).

“States led by New York sue to block Trump’s latest tariffs, calling them an illegal end-run around Supreme Court …. New York Attorney General and the top prosecutors of 23 other states are once again suing to block President Trump global tariff regime. Their lawsuit, filed in the Court of International Trade, seeks to deem Trump’s latest tariffs illegal and order refunds to states. Last month, the Supreme Court invalidated most of Trump’s sweeping “Liberation Day” tariffs implemented last year, saying that his use of the International Emergency Economic Powers Act to impose duties was improper …. In their lawsuit, the coalition argue that Trump is misusing Section 122 of the 1974 Trade Act, which they say was designed to address specific monetary imbalances possible when the U.S. was under the gold standard, rather than to combat trade imbalances. CNBC (3.5.26). 

“If a federal court orders the Trump administration to repay billions of dollars collected from its tariffs, the shipping giant FedEx announced this week that it would return the money to customers who bore the brunt of those charges. The new pledge came days after FedEx sued the U.S. government to secure a refund, part of a rapidly widening roster of businesses that have sought to seize on a recent Supreme Court ruling that struck down many of President Trump’s taxes on imports. FedEx, like other carriers, often acts as an importer of record, but it passes along the duties paid to the customers and companies that purchased the goods …. For now, the legal battle over refunds is only just beginning. The stakes for businesses and the U.S. government are high, given that the Trump administration had collected more than $100 billion under its slate of emergency duties.” “Money to be Returned to Customers. ”New York Times (2.27.26).

“Trump’s had his fun with tariffs and now it’s payback time. As in: it’s literally time to pay it back. The Supreme Court decision against Trump’s bogusly named emergency duties — as issued under the International Emergency Economic Powers Act — has put his trade policy in disarray. The tariff refund industry is out of the blocks trying to get repayment for businesses of something like $175bn levied over the past year. The exact mechanism for reclaiming tariff payments is mired in legal and administrative uncertainty. It’s possible that companies which paid tariffs that have not yet been “liquidated” — definitively finalized — might be able to get them back quickly. But it is too late for many. It’s pretty clear the administration will struggle to oppose refunds in principle …. It’s pretty clear the administration will struggle to oppose refunds in principle. In a court case brought to the CIT by a group of companies in December, the administration argued against immediately stopping the liquidation of payments but promised to allow refunds later. But Trump can certainly make them difficult and expensive to collect, out of spite if nothing else. Democrats in Congress have already proposed a bill to smooth and expedite the process; no one seems to think it will get enough votes to survive a presidential veto …. The refunds, on top of remaining and forthcoming tariffs, will thus surely become a political issue between now and the midterm elections in November …. Another potential source of friction is the mismatch between who in effect bore the cost of the tariffs and those who will get the refund. The money is handed back to the “importer of record” which paid them, but if that is a consumer-facing company — or indeed a wholesaler — which passed the cost on to its customers.” “Pay Back Time for Tariffs. ”Financial Times (2.27.26).

“In Chief Justice Robert’s mere 21 pages (Justice Neil Gorsuch’s concurring opinion, by contrast, clocked in at 46 pages, and Justice Brett Kavanaugh’s dissent at 63), he explained why, as a matter of statutory interpretation and the constitutional separation of powers, President Trump lacked the authority he had claimed, under the International Emergency Economic Powers Act, to impose a hodgepodge of tariffs on countries all over the world …. Chief justice is sending a message not necessarily or not only to Trump but also to the waiting world. Something along the lines of, “People, this is what we’re dealing with.” The point being not that “some fertilizers” are now exempt from reciprocal tariffs but that a reckless president is sowing chaos in America and around the globe …. It’s worth remembering that Chief Justice Roberts is the head of the entire judicial branch. It is in that capacity that his vexation with Trump verges on acute concern. The president has denounced judges who have ruled against him, including by calling for a Federal District Court judge’s impeachment. Trump has helped create an atmosphere in which judges appropriately fear for their personal safety and that of their families.” “Chief Justice and Trump.” New York Times (March 1, 2026).

“At least two retail customers pursuing tariff-related refunds [had] filed proposed class-action lawsuits in U.S. Courts against companies that also sued to recoup costs from the import taxes” that were struck down by the Supreme Court.. The lawsuits against FedEx and “Essilor Luxottica, which makes Ray-Ban sunglasses, seek to ensure that consumers get a share of any refunds the businesses get.” The FedEx lawsuit was filed after the company promised to share any refunds it manages to secure with its customers but noted that the promise is not “legally enforceable.” …. Many more such consumer lawsuits to surface” in the months ahead. “Update.” Scotus Blog (3.2.26).

“A federal appeals court declined to delay implementation of the Supreme Court ruling that invalidated most of President Trump’s tariffs, allowing next steps in processing of tariff refunds to begin swiftly, following the high court’s decision last month. The decision from the U.S. Court of Appeals for the Federal Circuit clears the way for the lower court, the U.S. Court of International Trade, to begin the process of crafting relief for the small businesses that successfully challenged Mr. Trump’s global tariffs. The Trump administration had said it would issue refunds if the duties targeting nearly every U.S. trading partner around the world were ultimately found unlawful by the Supreme Court. “Appeals Court Rejects Trump’s Request to Delay in Refunds.” CBS News (3.3.26).

“Treasury Secretary Scott Bessent said that the recently imposed 10% global tariff will likely rise to 15% sometime this week and that tariff rates will “effectively return to where they stood before the Supreme Court” struck down President Donald Trump’s signature tariffs. “It’s my strong belief that the tariff rates will be back to their old rate within five months,” Bessent said. The current 10% tariff, which will rise to a 15% tariff, was “imposed under Section 122 of the Trade Act of 1974 [and] can last for only 150 days unless Congress approves an extension.” Over the course of those 150 days, “the Office of the U.S. Trade Representative (Section 232) and the Commerce Department (Section 301) will complete trade-related studies that can allow them to impose more tariffs” …. Judge Richard Eaton of the U.S. Court of International Trade ruled that “all importers of record” are “‘entitled to benefit’ from the Supreme Court ruling that struck down” Trump’s tariffs. “Eaton was ruling specifically on a case brought by Atmus Filtration, a Nashville, Tennessee, company that makes filters and other filtration products, claiming a right to a tariff refund,” but his decision is expected to broadly benefit importers and consumers who paid tariffs. Trade lawyers expect the government to appeal or ‘seek a stay to buy more time for U.S. Customs to comply.’” SCOTUS Blog (3.5.26).