Today, in a 6-3 decision, the Supreme Court of the United States confirmed the lower courts’ holdings that the International Emergency Economic Powers Act (IEEPA) Fentanyl-related tariffs and IEEPA reciprocal tariffs are contrary to law, and therefore, invalid. The case has been remanded to the Court of International Trade (CIT) to reconsider the permanent injunction and determine the method and scope of refunds.
In the next few weeks, we expect the CIT to address the permanent injunction and outline a procedure by which importers can obtain refunds for ALL trafficking and reciprocal IEEPA tariffs collected by CBP. As you might recall, the government has agreed not to contest the CIT’s authority to order the reliquidation of all entries, of any age, at any time, and whether or not protested.
Below is the current status of all IEEPA tariffs in effect at this time:
- MX Fentanyl (struck down by this case)
- CA Fentanyl (struck down by this case)
- CN Fentanyl (struck down by this case)
- Reciprocal tariffs (struck down in this case)
- Special treatment for certain low-value shipments prohibited (i.e., “de minimis” prohibition has been struck down by this case)
- Russian Oil Buyers tariffs applied to Indian goods (revoked by EO this month, subject to CIT challenge)
- Brazil “Free speech” (subject to CIT challenge)
At this time, entries without IEEPA tariff lines will be rejected. We expect IEEPA tariffs to remain operationally “in place” until CBP publishes instructions.
In response to the Supreme Court’s decision, POTUS announced 10% tariffs under Section 122 of the Trade Act. Section 122 duties are limited to 150 days. We are following to see formal implementation.
The White House has prepared contingency options under other statutes and is expected to move quickly to reestablish much of the tariff framework. Possible options include:
- Section 122 of the Trade Act of 1974 (19 U.S.C. 2132) — Balance-of-Payments Authority
- Core powers: The President may proclaim a temporary import surcharge of up to 15% ad valorem (or impose quotas) for up to 150 days (extendable only by Congress) when facing “fundamental international payments problems” or risks of dollar depreciation.
- Section 338 of the Tariff Act of 1930 (19 U.S.C. 338) — Discrimination Against U.S. Commerce
- Core powers: The President may impose additional duties of up to 50% ad valorem (or ban imports) on countries found to impose discriminatory charges, regulations, or practices against U.S. exports.
- Speed & scope: Allows rapid presidential action based on factual findings. Can be country-specific or framed as “reciprocal.” No fixed expiration.
- Other Established, Tested Authorities (Slower but More Durable)
- Section 232: National-security tariffs or quotas after a Commerce Department investigation (no rate cap; indefinite duration). Already active on steel/aluminum, and other products; expansions are possible.
- Section 301 (Trade Act of 1974): Retaliatory tariffs after a USTR investigation into “unfair” foreign trade practices.
- Section 201 (Trade Act of 1974): Temporary “safeguard” tariffs after the International Trade Commission finds serious injury to a domestic industry.
The Trump administration’s position on trade and tariffs is constantly evolving, and the path forward is uncertain. Legal results depend on facts, applicable law, and circumstances that continue to evolve. If you have questions about any portion of this notice or require further clarification, please contact our office before acting.
