Now that the supreme court has found that the Donald Trump exceeded his authority to levy tariffs, the big question for many businesses – particularly small businesses who were so hard hit by these tariffs – is are they able to get their money back?
Don’t hold your breath. When it comes to tariffs, Trump still has many more tricks up his sleeve.
He can use section 223 of the Trade Expansion Action Act of 1962 (along with section 301 of the Trade Act of 1974) to levy tariffs on specific industries and sectors, like Joe Biden did on Chinese steel, semiconductors, electric vehicles and other products during his term. Or – as he’s recently threatened – he can use another section of the 1974 trade act to increase tariffs to 15% for 150 days which gives him “balance-of-payments authority”.
Although both tactics are limited and reviews, public comment and – in some cases – congressional approval are required, they can be pushed to their limits and there’s little doubt that the president will do just that. He will bend the rules to the fullest extent possible and fight anyone in court who dares to challenge his authority. He’ll make the case that these tariffs overlap with the ones previously – and illegally – levied under the International Emergency Economic Powers Act and will deny any responsibility for having to pay those tariffs back. All of this means years of litigation, appeals and appeals of appeals.
What small business has the time and money to do that? I’m betting not even your industry association is up for that fight.
Already, the administration is wiping its hands clean of any “refund” discussion. The US treasury secretary, Scott Bessent, told CNBC back in December that the “Trump admin will be able to replicate tariffs even if it loses supreme court decision,” and recently said: “The overall tariffs, at the end of the day, will be unchanged.”
And then, who gets the refund? To answer this question you’ll need to talk to the brokerage house that brought the goods in from overseas. They’re the typical “customer of record” in these international transactions and they’re the ones who would be responsible for representing your business as they’ve already done. Good luck with that. There is no formal refund process and the Trump administration has bounced the issue back to the lower court where the original tariff lawsuit was filed. Even people in this field are dubious as to whether they’ll ever be able to get back the money for their customers.
Lori Mullins of Rogers & Brown, a customs brokerage firm, told CNBC that her initial view of the supreme court decision is that it does not grant or guarantee refunds. “For importers hoping for refunds the answer is yes, we have a ruling but we do not have a ruling on if any refunds will be granted. That will be handled by a lower court at a future date/time.”
A number of large corporations are taking a shot at this. FedEx, Costco, Toyota, Goodyear and other large firms have all filed lawsuits seeking tariff refunds, but who knows if they will succeed. There’s no insurance for this. There are no specialists or superheroes. Just big companies hiring big law firms in an attempt to claw some dollars back. Maybe they will … years from now. Maybe not.
There are two things that could happen.
Congress could pass legislation requiring that refunds be made and set up a system for doing so. Legislation has already been proposed to do so. But in this very divided environment, and elections coming, imminent action seems unlikely.
And maybe a few intrepid law firms will be willing to undertake a class-action lawsuit on behalf of the millions of businesses and consumers affected by tariff-related price increases and go after the government, betting that the rewards could exceed the significant costs of going down that road, unpaid for years. It’s a big bet. And who knows what or if ever such funds could actually be recouped.
Again, don’t hold your breath.
