On February 20, 2026, the Supreme Court of the United States affirmed in a 6-3 decision that the International Emergency Economic Powers Act (IEEPA) does not authorize the President to impose tariffs.  The decision, authored by Chief Judge Roberts, defined the tariffs as a tax on U.S. importers and the Court emphasized that any delegation by Congress to the President of the power to impose tariffs must be explicit and that is not the case with the IEEPA statute.  Because the Court’s decision covered IEEPA authority broadly, it is anticipated that all IEEPA tariffs imposed on imports will be deemed unlawful, including targeted tariffs on Brazil and India.

The decision did not address the issue of remedies.  While it is unclear how quickly CBP will react to the decision, it is anticipated that CBP will be required to stop collecting the IEEPA tariffs.  Regarding potential refunds of IEEPA tariffs that have been paid to date, it is likely that further proceedings in the Court of International Trade will be necessary. During a press conference today, the President did not commit to paying refunds and stated the refund issue will likely be litigated for years. Companies that have filed cases to contest the tariffs should be protected for eventual recovery of refunds, and we continue to recommend that companies file protective cases in court, particularly in light of the President’s comments today.  It remains uncertain whether administrative protests filed with CBP will be an available procedure for refunds. Companies should consider filing protective administrative protests within 180 days of liquidation to preserve potential administrative refund rights until the question of remedy is resolved.

President Trump stated today that he intends to impose a global tariff of 15% ad valorem under other authorities in Section 122 of the Trade Act on 1974 effective next week.

IEEPA Next Steps:

1. The test cases are being sent back to the CIT to determine what should happen next.  The CIT will decide if refunds should be issued to plaintiffs in the test cases.   The court will also decide if refunds should be issued to other importers who have filed cases in the CIT.    The answer to both of these issues should be positive now that the IEEPA assessments have been found to be contrary to law.
2. We can expect the lawyers for the test cases to engage with the DOJ and the court on the test cases, and the steering committee to engage with the DOJ and the court on the same issues.  We don’t know how long this process will take.
3. Hopefully, a procedure will be created, without litigation to refund duties to those importers who filed cases in the CIT.
4. We have no idea whether CBP will entertain IEEPA protests.   Many importers are filing protests to protect their rights to refunds.  There is no downside to filing protests as added protection, but the filing in court should be the more efficient way to get the refunds of all IEEPA duties that were paid.
5. The President’s recent publications stated that CBP will stop collecting IEEPA duties as soon as practical.   It just requires some programming which should be ready in the next day or so.  If entries are filed without the payment of IEEPA duties before the programing is in place, then the entries may be rejected.   You may have to pay IEEPA duties until the programing is in place.   This may be an opportunity to file Post Summary Corrections to claim those refunds.

Section 122 Duties:

1. The President has said that these duties will be effective on 12:01 AM on 2/24/26.   10% was the duty amount originally proposed, but that number will be increased to 15% according to truth social announcements.
2. These duties will be imposed in additional to regular duties that are already in place.  (e.g. column 1 duties and section 301 duties). These duties will not be imposed if duties are being assessed under Section 232.
3. There is a short in-transit exception to these assessments—-HTSUS subheading 9903.03.02— Articles the product of any country that (1) were loaded onto a vessel at the port of loading and in transit on the final mode of transit prior to entry into the United States, before 12:01 a.m. eastern standard time on February 24, 2026; and (2) are entered for consumption, or withdrawn from warehouse for consumption, before 12:01 a.m. eastern standard time on February 28, 2026 are excluded from the section 122 assessments.
4. Goods in certain annexes will be excepted as they were under the IEEPA programs.   Notably, goods that qualify for free treatment under USMCA and CAFTA will be excluded under Annex I.   Also excluded will be items on Annex II.   The Annexes to the new program have been attached
5. These assessments will be made for 150 days, unless they are extended by Congress.
6. In order to make these assessments, the President had to meet certain standards, and we can expect that some importers may challenge his findings on those issues.

GDLSK is involved in the numerous cases pending in the CIT and will continue to provide updates and guidance.  Please contact any of our attorneys with any questions.