What’s next for companies after tariff ruling?

Any tariff reimbursements to importers may take years to resolve, some customs and trade lawyers say, despite a federal judge’s order earlier this month giving U.S. Customs and Border Patrol 45 days to develop a procedure to review requests.

Since the U.S. Supreme Court struck down President Donald Trump’s use of the International Emergency Economic Powers Act, or IEEPA, to impose hefty tariffs on nearly all national importers, attorneys and companies have been scrambling to navigate the
rapidly evolving situation.

Russell Menyhart, chair of Taft Stettinius & Hollister LLP’s international trade group, says his firm has been advising clients to take various steps to protect their rights to refunds, including gathering detailed data on impacted imports dating back to February 2025 — when Trump first imposed tariffs through IEEPA — and taking administrative actions to prevent Customs and Borter Patrol, or CBP, from attempting to deny certain refund claims.

“Know what goods have come into the U.S. under your name as an importer of record, and take legal steps to preserve your rights to refunds,” Menyhart told The Indiana Lawyer in a written statement.

‘Years to resolve’

The IEEPA tariffs were initiated after Trump declared national emergencies on drug trafficking and illegal immigration, shortly after taking office for his second term. Goods from Canada, Mexico and China were the first to be targeted, and the administration later followed up with broader “reciprocal” tariffs.

The IEEPA tariffs have brought in more than $150 billion since they were implemented, according to the Congressional Budget Office.

But last month, the Supreme Court ruled in a 6-3 decision in Learning Resources, Inc. v. Trump that those tariffs were unlawful, opening the door for businesses to get their money back.

The case was then remanded to the Court of International Trade, where Judge Richard Eaton affirmed that companies were entitled to a refund and ordered CBP to begin establishing a process to review claims and provide refunds.

On March 6, CBP requested an additional 45 days to establish a refund process, which Eaton granted.

Last week, Brandon Lord, the executive director of CBP’s Trade Policy and Programs directorate, updated the court that CBP is currently creating a four-path refund process through its Automated Commercial Environment — the electronic system Customs uses to process import data.

The process will be comprised of a claim portal, in which requests for refunds will be made, an automated processing feature, a review of import entries and finally the refund.

Although CBP is steadily following the court’s demands, some attorneys closely following the matter don’t expect it to wrap up quickly.

“If I had to predict, it would be years to resolve,” said Clinton Yu, a Washington, D.C.-based international trade attorney and partner with Barnes & Thornburg LLP.

Yu expects a long, drawn-out process involving legal action before refunds come through.

“I know that when the Supreme Court first issued its decision, the president and others within the administration basically said, ‘We’re playing that this, the refund effort, will go through multiple levels of appeal, and it could get tied up in litigation for years,” Yu said.

An unprecedented moment

Several attorneys The Indiana Lawyer spoke with emphasized the unprecedented nature of the current tariff environment.

“We just haven’t seen anything on this scale before,” said Matthew Kinsman, a customs and international trade attorney with Faegre Drinker Biddle & Reath LLP.

Although the executive branch has broad discretion over foreign commerce, the U.S. Constitution explicitly gives Congress the authority to set taxes, including tariffs.

In the past, Congress has delegated tariff power to the executive branch through various statutes, including Section 201 of the Trade Act of 1974, which allows the president to impose temporary tariffs to protect domestic industries.

But no president has ever used IEEPA to set tariffs, according to a Congressional Research Service report.

Enacted in 1977, IEEPA gives the president various economic powers to “deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat.”

Historically, presidents have instead worked through other statutes to set their economic agendas. For instance, Section 232 investigations of the Trade Expansion Act of 1962 let the president “adjust imports” that are a danger to national security. After a Section 232 investigation is initiated, the Department of Commerce has 270 days to submit a report to the president to determine whether action should be taken to address the national security threat.

Presidents have also used Section 301 of the Trade Act of 1974 to impose tariffs. Section 301 may be used to respond to unjustifiable, unreasonable or discriminatory foreign government practices that burden or restrict U.S. commerce, according to the Office of the U.S. Trade Representative.

Last week, the Trump administration launched Section 301 investigations against 16 economies, including China, the European Union, Taiwan, Mexico, Japan and India, for potentially “exporting their problems with excess capacity and production” to the U.S., said U.S. Trade Representative Jamieson Greer.

And shortly after the Supreme Court struck down IEEPA, the Trump administration initiated a broad 10% surcharge on imports through Section 122 of the Trade Act. The rate is likely to increase to 15%, which is the statutory maximum.

A Section 122 surcharge is temporary, lasting up to 150 days, unless Congress approves extending it. Kinsman, the international trade attorney with Faegre Drinker, is hesitant that Congress will extend it.

“In my mind, the politics has shifted substantially when it comes to the tariffs just over the past couple of months as we get closer to the midterms,” Kinsman said. “So I think the ability of the administration to get [congressional approval] would pose some challenges.”

With the addition of these new tariffs, Taft’s Menyhart says tariff compliance is “likely to only get more complicated.”

Attorney predictions

Given that nobody has clear guidance right now, many trade lawyers say they are advising their clients to stay conservative and take a wait-and-see approach to the refund process.

Subaru of Indiana general counsel Rachel Hazaray said that since CBP is working on its administrative processes before pulling the trigger, she thinks that could lead to a smoother refund process.

“But again, it’s just, it’s very difficult to know,” Hazaray said.

She emphasized that Subaru of Indiana, a large manufacturing arm of the Japanese automaker that operates out of Lafayette, is very interested in taking advantage of the refund opportunity when it becomes available. “But we are kind of proponents of sitting back and waiting to see sort of what processes develop,” she said.

Barnes & Thornburg’s Yu says he is advising a variety of clients coming from different circumstances. His advice depends on the timeline of their import.

Some of his clients have unliquidated entries, meaning final tariff charges have not been calculated yet, while others already have had their entries liquidated, or finalized.

When a company has a shipment come into the country, it must file a customs entry, Yu explained. That entry typically sits open for 314 days, during which CBP may inquire into it and make changes or issue penalties.

If CBP does not change anything with the entry by the end of the 314 days, then the entry liquidates — meaning it has met the final calculation of duties owed on an entry.

“But that’s not the end of the story,” Yu said.

Once an entry liquidates, companies have 180 days to file a protest if they wish to contest tariff duties.

But some of Yu’s clients have already passed the 180-day protest window, a situation Judge Eaton did not address in his initial order.

Companies might now have to file a lawsuit to preserve their right to a refund, he added.

“We’ve seen thousands of companies file lawsuits,” Yu said. “It’s unclear if any of those will end up being the path to a refund for them, but for the finally liquidated entries, those are the ones we’re talking more about litigation with the clients.”

Concerns to look out for

Yu encouraged companies to get in the game now by setting up their Automated Commercial Environment accounts, if they haven’t already, since that will be how refunds are returned.

But now that many are making accounts in ACE all at once, Yu said there could be technical issues with enrolling in Automated Clearinghouse enrollment, which is the specific electronic transaction account that refunds will be processed through.

“It’s not too late. People should be doing it now,” Yu said. “There might be a longer waiting period, but don’t drag your feet on getting an ACE account and enrolling in ACH.”

Menyhart encouraged businesses to not only keep track of what goods they have imported into the country, but also to think through the downstream issues, such as whether importers who charged tariff surcharges last year owe a portion of any refund to their customers.

“Companies impacted by IEEPA tariffs need to think broadly about tariff mitigation strategies, rather than focus just on the refund process,” Menyhart said.•