UPDATE: This alert has been updated to reflect the latest developments as of February 21, 2026.

On February 20, 2026, the Supreme Court held, in a 6-3 decision issued by Chief Justice Roberts, that the tariffs President Trump imposed under the International Emergency Economic Powers Act (IEEPA) are unlawful. The Court was unequivocal that IEEPA does not authorize the President to impose tariffs, and it therefore held that both the “reciprocal” tariffs imposed on the vast majority of US trading partners and the tariffs imposed on China, Canada, and Mexico related to immigration and importation of illicit opioids are invalid. Following the decision, President Trump issued an Executive Order (EO) immediately revoking the IEEPA tariff orders and ending the collection of the tariffs “as soon as practicable.”

The Supreme Court’s decision does not mark the end of the Trump Administration’s tariffs, however. Tariffs under other legal authorities, such as Section 232 of the Trade Expansion Act of 1962 (Section 232), remain in effect. Further, as President Trump announced in a press conference shortly after the Court issued its decision, the Trump Administration took immediate steps to impose new tariffs under other authorities. President Trump issued a Proclamation under Section 122 of the Trade Act of 1974 (Section 122) imposing a 10% tariff on products of all countries, effective February 24 for 150 days, unless modified, terminated, or extended by Congress. The Office of the United States Trade Representative (USTR) also announced that the administration will initiate new investigations into other countries’ unfair trading practices under Section 301 of the same act (Section 301), which are likely to result in additional tariffs. The administration may also use other tools, including Section 232 and Section 338 of the Tariff Act of 1930, to impose additional tariffs. These actions may lead to further litigation. The status of the tariffs that the administration maintained in its approximately 20 “trade deals” also remains uncertain.

The question of refunds will be top of mind for many importers who have paid IEEPA tariffs, as neither the Supreme Court’s decision nor the EO revoking the IEEPA tariffs addressed this issue. We cannot rule out the possibility that the administration will take action to try to avoid or delay refunds. In fact, President Trump signaled in the press conference that the administration may be planning to litigate the issue of refunds. What we do know is that the majority opinion did affirm the exclusive jurisdiction of the US Court of International Trade (CIT) over challenges to the IEEPA tariffs. Thus, CIT litigation will resume, and the court will likely reconsider the issue of relief for importers.

Pending further guidance from the CIT and/or US Customs and Border Protection (CBP), importers should have two options for seeking refunds: (1) using CBP’s administrative procedures to seek refunds via Post Summary Corrections (PSCs) and protests; and/or (2) filing suit at the CIT under the court’s residual jurisdiction provision, 28 U.S.C. § 1581(i), to challenge the lawfulness of IEEPA tariffs collected by CBP. We provide operational information about these options below. 

Background

• Beginning in February 2025, President Trump invoked IEEPA to impose sweeping tariffs. These include:
  • tariffs on China, Canada, and Mexico to address national emergencies declared regarding immigration and importation of illicit opioids; and
  • “reciprocal” tariffs on the vast majority of US trading partners to address a national emergency declared on the persistent US trade-in-goods deficits.
• In May 2025, two federal courts struck down the IEEPA tariffs.
  • In V.O.S. Selections, the CIT ruled that the tariffs are unlawful because IEEPA does not authorize the President to impose these specific tariffs. The CIT vacated the IEEPA tariff orders and permanently enjoined the administration from enforcing the orders.
  • In Learning Resources, the US District Court for the District of Columbia (DDC) held that the tariffs are unlawful because IEEPA does not authorize the President to impose tariffs at all. The DDC enjoined the administration’s enforcement of the tariffs against the plaintiffs.
  • Both of these decisions were stayed pending appeal.
• In August 2025, the US Court of Appeals for the Federal Circuit (Federal Circuit) issued an en banc decision affirming the CIT decision. However, the Federal Circuit vacated the CIT’s permanent nationwide injunction against enforcement of tariffs against all importers and remanded to the CIT for further proceedings.
  • The Federal Circuit stayed its decision pending appeal to the Supreme Court.
• The Supreme Court granted expedited review of the consolidated cases on September 9, 2025, and heard oral argument on November 5, 2025. These arguments raised the following key issues:
  • whether the President’s IEEPA authority to “regulate . . . importation” to deal with national emergencies includes the power to impose tariffs;
  • whether the major questions doctrine requires that Congress clearly authorize the President to use IEEPA to impose wide-ranging tariffs; and
  • whether the administration’s broad interpretation of IEEPA would amount to an unconstitutional delegation of authority.
• While awaiting the Supreme Court decision, nearly 2,000 importers filed cases at the CIT challenging the IEEPA tariffs, seeking refunds.
  • The CIT stayed all new cases pending the Court’s decision.
  • On January 8, 2026, the administration stipulated that it would refund IEEPA tariffs—including IEEPA tariffs imposed on Brazil and India that were not at issue in the Supreme Court litigation—for all current and future similarly situated plaintiffs following a “final and unappealable decision” ordering the government to issue refunds.

Supreme Court Decision

• On February 20, 2026, the Supreme Court held that “IEEPA does not authorize the President to impose tariffs.”
  • Chief Justice Roberts delivered the 6-3 majority opinion, joined in full by Justices Gorsuch and Barrett, and joined in part by Justices Sotomayor, Kagan, and Jackson. Justices Thomas, Alito, and Kavanaugh dissented and would have held that IEEPA does authorize tariffs.
• The crux of the Court’s decision is that, in enacting IEEPA, Congress did not delegate to the President the authority to impose tariffs. In reaching that conclusion, the Court emphasized that Congress notably did not include “any mention of tariffs or duties” in IEEPA—in contrast to what it typically does in other tariff statutes. And the Court further explained that the power under IEEPA to “regulate . . . importation” cannot be read to encompass tariffs because the power to regulate does not include the power to tax. 
  • Beyond these reasons, there was some disagreement among the six justices in the majority about why IEEPA does not authorize tariffs. Chief Justice Roberts’s opinion relied primarily on what has become known as the major questions doctrine, concluding that there would need to be clear statutory authorization for Congress to delegate the power to impose tariffs. Justice Kagan, in an opinion joined by Justices Sotomayor and Jackson, argued instead that ordinary principles of statutory interpretation—rather than any clear-statement rule—are enough to decide this case. But this disagreement over reasoning did not affect the Court’s bottom-line holding that the tariffs are invalid.
• The Court thus affirmed the Federal Circuit’s en banc decision in V.O.S. Selections.
  • The Court also vacated the DDC decision in Learning Resources because it held that the CIT has exclusive jurisdiction over challenges to IEEPA tariffs under 28 U.S.C. § 1581(i), as such challenges “‘arise out of’ modifications to the [Harmonized Tariff Schedule]” and therefore arise out of a law “providing for tariffs.” Because the Court has now held that IEEPA tariffs are unlawful, the fact that the Court vacated the DDC decision will have little practical effect.
• The Court did not, however, order the Trump Administration to issue refunds or otherwise address that issue—a process Justice Kavanaugh warned in his dissent is likely to be a “mess.”
• Following this decision, CIT litigation will resume, in which the CIT will likely reconsider the issue of relief for importers. 

Trump Administration’s Reaction to Supreme Court Decision: Other Authorities the Administration Will Use to Re-Impose Tariffs

On February 20, 2026, in response to the Supreme Court’s decision, President Trump issued an Executive Order (EO) revoking the IEEPA tariffs. The EO stated that the IEEPA tariffs “shall no longer be in effect and, as soon as practicable, shall no longer be collected,” but did not address the issue of refunds. The EO directed administration officials to make such modifications to the Harmonized Tariff Schedule (HTS) as may be necessary to effectuate the order. Finally, the EO affirmed that the President’s termination of duty-free de minimis treatment for all countries, as well as tariffs imposed under Section 232 and Section 301, remain in effect.

As President Trump announced in a press conference after the decision, the administration also took immediate steps to impose new tariffs using other authorities.

• Section 122 of the Trade Act of 1974: On February 20, 2026, President Trump issued a Proclamation under Section 122 imposing a 10% “temporary import surcharge” (i.e., a tariff) on products of all countries, effective February 24, 2026, for 150 days (until July 24, 2026), unless modified, terminated, or extended by Congress. On February 21, 2026, President Trump announced on Truth Social that he would immediately increase the 10% tariff to 15% for all countries.
  • The 15% tariff is the maximum tariff rate allowed under Section 122.
  • The Proclamation excludes certain goods, including goods previously exempted from IEEPA tariffs (e.g., USMCA-qualifying goods from Canada and Mexico; goods subject to Section 232 tariffs; critical minerals; pharmaceuticals; certain electronics) and goods exempted from IEEPA tariffs under country-specific trade deals (e.g., certain civil aircraft and aircraft parts; certain textiles).
    • For goods where a Section 232 tariff applies to only part of the good (e.g., certain aluminum and steel products), the Section 122 tariff will apply to the part not subject to Section 232 tariffs.
    • The tariff provisions imposing the Section 122 tariffs and relevant exemptions are available in Annex I to the Proclamation. The full list of exemptions is available in Annex II.
  • The Proclamation also includes an on the water exception for goods that (i) 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 (ii) are entered for consumption, or withdrawn from warehouse for consumption, before 12:01 a.m. eastern standard time, February 28, 2026.
• Section 301 of the Trade Act of 1974: The Office of the US Trade Representative (USTR) announced that it will initiate new Section 301 investigations into other countries’ unfair trading practices. 
  • Section 301 authorizes the US Trade Representative to take action against foreign acts, policies or practices that, inter alia, are unreasonable or discriminatory and burden or restrict US commerce. It has historically been the principal US statute providing for unilateral action against unfair foreign trade practices, but requires significant process.
  • USTR said that these investigations—which it will conduct “on an accelerated time frame”—will cover “most major trading partners” and address issues including:
    • industrial excess capacity;
    • forced labor;
    • pharmaceutical pricing practices;
    • discrimination against US technology companies and digital goods and services, and digital services taxes;
    • ocean pollution; and
    • practices related to the trade in seafood, rice and other products.

In the coming days, the President could also leverage other tariff authorities, including:

• Section 232 of the Trade Expansion Act of 1962: The administration may be preparing additional investigations that would lead to more sector-based tariffs under Section 232.
  • The Supreme Court’s decision leaves open the door to further use of Section 232, a statute that the majority described as including “sweeping, discretion-conferring language” and that should “natural[ly]” be read to authorize tariffs because it expressly mentions duties.
• Section 338 of the Tariff Act of 1930: Section 338 authorizes tariffs of up to 50% against articles of a foreign country where such country discriminates against US commerce in certain ways. The provision, which has few procedural hurdles, has never been used to impose tariffs.

Status of Administration’s “Trade Deals” Remains Unclear

• To date, the administration has struck either framework or final “trade deals” with approximately 20 US trading partners, which include country-specific tariff rates that appear to rely on IEEPA authorities.
• Although the President has replaced the IEEPA tariffs with Section 122 tariffs, the status of the country-specific tariff rates in these deals remains uncertain—particularly where the countries negotiated a tariff that exceeds the 15% tariff imposed on all countries under Section 122. For example, the tariff negotiated with Indonesia (19%) is in fact higher than the maximum 15% tariff that Section 122 allows.  
• While the administration may use the new Section 301 investigations to address that delta, it may face issues with certain deals in the interim. 

How Can Companies Seek Refunds of Tariffs They Have Paid? How To Proceed Depends on the Status of Entries

• Importers may be able to use CBP’s administrative procedures to seek refunds via PSCs and protests.
  • Taking such actions should protect importers’ rights to claim refunds on past entries if CBP and/or the CIT ultimately decide that administrative remedies are the correct avenue for claiming refunds following the Supreme Court’s decision.
• Liquidated Entries: For any entries that have already been finalized (i.e., liquidated), importers can file protests requesting refunds plus interest no later than 180 days from liquidation.
  • Although the CIT stated in a December 15, 2025 decision that filing protests on liquidated entries before any Supreme Court decision would be futile, the decision left open the possibility that CBP’s decision to liquidate entries as subject to the IEEPA tariffs after a decision would be protestable. See AGS Company Automotive Solutions et al. v. U.S. Customs and Border Protection et al., No. 25-255 (Slip Op. 25-154 (Ct. Int’l Trade Dec. 15, 2025).
  • If CBP denies protests, importers can file suit at the CIT pursuant to 28 U.S.C. § 1581(a) to challenge the denials.
• Unliquidated Entries: For entries that have not yet liquidated, importers can file PSCs requesting duty refunds plus interest.
  • PSCs can be filed on entries within 300 days of entry and at least 15 days before scheduled liquidation.
  • If CBP denies refunds requested through PSCs, importers can challenge the denials by filing protests.
  • If CBP denies the protests, importers can file suit at the CIT.
• Collect Documentation: Any strategy to seek refunds of the IEEPA tariffs requires entry documentation and records evidencing tariff payments. An importer’s documentation will also determine whether a PSC or protest may be most appropriate. 
  • Importers should ask their customs brokers to download entry records maintained in CBP Automated Customs Environment (ACE) to identify the universe of entries for which they served as the importer of record and paid IEEPA tariffs.
  • For these entries, importers should compile and maintain documents to support their refund requests. Relevant documents include:
    • entry packets (e.g., CBP Entry (Form 3461), Entry Summary (Form 7501), commercial invoice, packing list, transportation records, certificates of origin); 
    • proof of payment of applicable duties (e.g., bank transfers, CBP Periodic Monthly Statement); and
    • documentation of any post-entry activity resulting in additional duty payments or duty refunds (e.g., Liquidated Damages Notices, Post Summary Corrections, CF-28 Requests for Information, CF-29 Notices of Action).

Unfortunately, This Could Become Even More Complicated: Potential Hurdles to IEEPA Tariff Refunds

• When CIT litigation resumes, it is possible that the CIT will maintain its earlier position that CBP’s liquidation of entries as subject to the IEEPA tariffs is not protestable. In that case, filing suit under the CIT’s residual jurisdiction provision, 28 U.S.C. § 1581(i), may be necessary.
  • Although filing suit prior to a Supreme Court decision entailed some political risk, that risk is likely lower now that all importers may have to file suit to obtain refunds.
  • CBP may establish a court-supervised refund process that requires importers to file § 1581(i) suits, which could be faster than CBP’s administrative refund processes.
  • Note that interest is unlikely to be available in a § 1581(i) case (unlike in a challenge of a protest denial under § 1581(a)). So, it is important to avoid having a suit under § 1581(i) go to judgment before it is certain that a challenge under § 1581(a) is unavailable.
• As noted above, the administration stipulated that it would issue refunds following a final, unappealable decision ordering the government to refund the IEEPA tariffs. This means that the administration may refuse to issue refunds until further litigation results in such an order from the CIT.
  • Indeed, as noted above, President Trump indicated in his press conference that the Court’s failure to address the refund issue in the decision means litigants will “end up being in court for five years.”

WilmerHale is closely monitoring developments with respect to the Administration’s new tariff actions—as well as its approach to refunds. We stand ready to advise clients on the complex legal, policy and business-planning implications of these events.