by Craig Brightup, The Brightup Group —
On Nov. 5, 2025, the U.S. Supreme Court (SCOTUS) heard oral arguments on whether the Trump Administration can use the International Economic Emergency Powers Act (IEEPA) to impose “reciprocal tariffs” on some 200 countries and “fentanyl tariffs” on Canada, Mexico and China. The tariff cases, Learning Resources, Inc. v. Trump and Trump v. V.O.S. Selections, made their way to SCOTUS starting with a May 28 ruling against them from the U.S. Court of International Trade (CIT) in the V.O.S. case, followed by a federal district court ruling in Learning Resources which also ruled against them.
On July 31, the U.S. Court of Appeals for the Federal Circuit heard the government’s appeal of the V.O.S. ruling and on August 29 upheld the CIT in a 7-4 decision. The Appeals Court also let the tariff stay in place to allow the Administration to file an appeal with SCOTUS seeking a fast-track review.
SCOTUS granted fast-track status to the Administration’s appeal in V.O.S. and allowed the IEEPA tariffs to continue throughout the legal process. In addition, SCOTUS agreed to add Learning Resources to the same fast-track docket, consolidating the tariff cases for Nov. 5’s oral arguments.
The U.S. Chamber of Commerce’s Litigation Center submitted a brief for Nov. 5, and the head of the Center gave his take on how the justices might rule at a presentation attended by IHA. The Chamber believes each side can count on three justices, with Jackson, Sotomayer and Kagan likely to oppose the tariffs, and Alito, Thomas, and Kavanaugh likely to uphold them. As such, Roberts, Gorsuch and Barrett could be the only justices in play with Roberts appearing to lean towards the plaintiffs and Gorsuch, too, perhaps with a separate opinion, while Barrett is tough to read.
SCOTUS must address whether IEEPA grants the President the authority to impose tariffs, which is a power traditionally reserved for Congress, or if Congress did not intend to delegate this power to the President because IEEPA doesn’t mention “tariffs.” Other issues include whether tariffs are taxes, and if “persistent trade deficits” rise to the level of an economic emergency. A decision might not be ready for months and should SCOTUS rule against the IEEPA tariffs, it’s unclear whether the tariffs would have to be refunded and, if so, the mechanics by which such refunds would be implemented.
Therefore, trade lawyers and shipping brokers are advising importers to preserve the right to refunds should SCOTUS rule against the IEEPA tariffs. This would involve filing protests of IEEPA tariffs with Customs and Border Patrol (CBP) before liquidation or requests that CBP suspend protests pending SCOTUS’s decision.
Costco is taking the additional step of filing a lawsuit with the CIT, fearing it won’t get refunds if SCOTUS strikes down the tariffs. Costco believes that a Dec. 15 deadline could prevent tariffs it’s paid from being refunded, stating CPB denied its request to delay the Dec. 15 date for liquidation.
An importer has six months to file a protest contesting liquidation, but COSTCO says the lawsuit is necessary because importers aren’t guaranteed refunds if SCOTUS rules against IEEPA tariffs. Other companies that have reportedly sought to protect tariff refunds with the CIT include Bumble Bee Foods, Kawasaki Motors, Revlon and Yokohama Tire.
