At summer’s start, the U.S. Court of International Trade (“CIT”) made headlines with a landmark decision invalidating the Trump Administration’s imposition of tariffs on nearly all imported goods from nearly all U.S. trading partners under the International Emergency Economic Powers Act (“IEEPA”). Last Friday, in a per curiam decision of the en banc appellate court, the Federal Circuit affirmed the CIT’s decision on the merits, but vacated the CIT’s injunctive remedy. Concurrent with its opinion declaring the tariffs invalid, the Federal Circuit issued an order delaying issuance of a mandate for its decision until October 14, 2025, to allow the parties time to seek review by the Supreme Court of the United States—a step the government is expected to take.
The challenged tariffs now hang in limbo—still in place on imports notwithstanding rulings from two levels of federal courts declaring them unlawful. And before the lower court considers any alternative injunctive relief consistent with Friday’s vacatur decision, the case will advance along a path that many see as inevitably leading to review by the Justices of the Supreme Court.
In the meantime, those interested in the economic and monetary implications of the tariffs and their invalidation—including consumers and businesses facing higher prices, importers desiring relief from ongoing duties and reimbursement for payments made under now-invalidated tariffs, and investors assessing the broader impacts of these rulings—will be watching. They would be well advised to monitor not only the injunctive relief that may be deemed proper under the Federal Circuit’s decision and any forthcoming decision from the Supreme Court, but also the potential paths that may open for them to recover on the billions of dollars in tariffs paid to date.
The Tariffs And The Court Of International Trade’s Order Invalidating Them
The tariff litigation concerns the Trump Administration’s use of executive orders to establish what can broadly be categorized as the “Trafficking Tariffs” (imposed on China, Mexico, and Canada purportedly in response to a declared emergency over opioid trafficking) and the “Reciprocal Tariffs” (imposed as a baseline of 10% on nearly all countries, with higher country-specific rates, purportedly to address a declared emergency over unequal terms with trading partners). Although the Administration has adjusted the precise tariff rate for certain countries several times this year, those changes have not materially impacted the ongoing litigation.
In May, the CIT invalidated both groups of tariffs, ruling that they “exceed any authority granted to the President by the IEEPA to regulate importation by means of tariffs” and do not reflect a policy rationally tailored to “deal with the threats set forth in” the executive orders. V.O.S. Selections, Inc. v. United States SLIP OP. 2025-66 1, 48 (C.I.T. 2025).
As relief, the lower court’s decision concluded “[t]he challenged Tariff Orders will be vacated and their operation permanently enjoined.” Id. at 48. However, at the government’s request, the Federal Circuit stayed implementation of the CIT’s injunction pending the appellate court’s review.
The Federal Circuit’s Decision Affirming That The Tariffs Are Unlawful
In last Friday’s decision, the Federal Circuit affirmed the CIT’s decision on the merits, holding that the Trafficking and Reciprocal Tariffs are unlawful because the executive orders creating them exceed the authority delegated to the president in IEEPA and run afoul of constitutional principles. The decision narrowly defined the question on appeal: “the only issue we resolve on appeal is whether the Trafficking Tariffs and Reciprocal Tariffs imposed by the Challenged Executive Orders are authorized by IEEPA.” The Court explained: “We conclude they are not.” Slip Op. at 26.
As a matter of statutory construction, the government argued that, in enacting IEEPA, Congress gave the President power to issue such tariffs by authorizing him to “regulate … the ... importation” of goods from a foreign country. See 50 U.S.C. § 1702(a)(1)(B). The Federal Circuit rejected that interpretation of the statute, reasoning that the term “regulate” does not encompass a broad power to impose any tariffs. The court noted that, in IEEPA, “Congress did not use the term ‘tariff’ or any of its synonyms, like ‘duty’ or ‘tax,’” in contrast to the “numerous statutes that do delegate to the President the power to impose tariffs” using those words. Slip Op. at 27.
The Court distinguished its own 1975 decision in Yoshida Int’l v. United States, 378 F. Supp. 1155, 1175–76 (Cust. Ct. 1974), rev’d, 526 F.2d 560 (CCPA 1975), in which a panel of judges of the Federal Circuit (which, the decision notes, does not bind the en banc court) held that former President Nixon permissibly issued certain monetary measures imposed on imports. The decision noted that the statutory interpretation that guided the decision in Yoshida did not extend to interpreting IEEPA to allow the President to impose the present tariff regime, which the court deemed unique insofar as they “apply to nearly all articles imported into the United States … , impose high rates which are ever-changing … , and are not limited in duration.” Slip Op. at 41-42.
As a matter of constitutional law, the Federal Circuit held that interpreting IEEPA to authorize the tariffs “also runs afoul of the major questions doctrine.” Slip Op. at 33. That doctrine, expounded in several decisions from the Supreme Court invalidating executive action in the fields of environmental regulation and student loan debt in recent years, holds that for issues of great “economic and political significance,” courts should “hesitate” before interpreting Congressional statutes to confer broad authority on the executive. Slip Op. at 33-34. See also West Virginia v. EPA, 597 U.S. 697 (2022); Biden v. Nebraska, 600 U.S. 477 (2023). In a footnote that will be of interest to those following the evolving jurisprudence on this doctrine, the decision noted that “the economic impact of the tariffs is predicted to be many magnitudes greater than the two programs that the Supreme Court has previously held to implicate major questions.” Slip Op. at 37, n.18.
Although the Federal Circuit agreed that the Trafficking and Reciprocal Tariffs were unlawful, it vacated the CIT’s issuance of a remedial injunction. The CIT had issued a universal injunction ordering the government to “effectuate” its decision that the tariffs were unauthorized within 10 days. Slip Op. at 43. The Federal Court did not assess the validity of the CIT’s injunction analysis, because it determined that “vacatur of the universal injunction is warranted based on the Supreme Court’s intervening decision in Trump v. CASA, Inc., 145 S.Ct. 2540 (2025).” In CASA, the high court addressed “district courts asserting the power to prohibit enforcement of a law or policy against anyone,” as opposed to “only against the plaintiffs in the lawsuit,” and held that such “universal injunctions … likely exceed the equitable authority that Congress has granted to federal courts” under the Judiciary Act. 145 S.Ct. at 2549-50. In CASA, the Supreme Court remanded the case to the trial court to reassess the scope of its relief. In V.O.S. Selections, the Federal Circuit followed suit and, like the Supreme Court, remanded the case for the CIT to assess the proper scope of a narrower injunction in the first instance.
Show Me The Money
Those subject to the adverse impacts of the Trafficking and Reciprocal Tariffs have more pressing questions on their minds than the niceties of constitutional doctrine and the Judiciary Act. For businesses and consumers paying increased supply costs and product prices, the question is if, when, and to what extent the courts will halt the continuing assessment of import tariffs and the economic drag those tariffs impose on domestic commerce and prosperity. For those directly paying unlawful tariffs, the question is if, when, and how they can get their money back.
For both of those questions, the Supreme Court of the United States is likely to weigh in before long. Commentators across the board expect the government to seek and obtain a high court review of last week’s decision from the Federal Circuit on the merits and scope of proper relief.
With respect to prospective injunctive relief, onlookers may also expect the CIT to weigh in if the case is remanded to it in October (or following Supreme Court review, as happened in CASA), potentially issuing a narrower, modified form of relief in lieu of the injunction it granted last May. However, given the Supreme Court’s ruling in CASA and the Federal Court’s reliance on that decision in vacating the CIT’s injunction last week, it appears possible that any injunction from the CIT even after the V.O.S. Selections case goes before the Supreme Court will fall short of halting tariffs, and the economy-wide impacts they have, for all importers on a universal basis.
As tariff assessments continue and the tally of dollars paid under an unlawful tax program accrue, importers will wonder if they might recoup those payments through litigation. As discussed, national class action lawyers have already brought suit in the CIT for recovery of tariff payments for all importers, much as business entities sought recoupment of Harbor Maintenance Tax payments assessed and deemed unlawful by the Federal Circuit about three decades ago. See U.S. Shoe Corp. v. United States, 907 F. Supp. 408, 421 (Ct. Int’l Trade 1995), aff’d, 114 F.3d 1564 (Fed. Cir. 1997), aff’d, 523 U.S. 360 (1998). But, given the CIT’s historic reticence in certifying a class for economy-wide repayment of unlawful tariffs, see Baxter Healthcare Corp. v. United States, 925 F. Supp. 794, 800 (Ct. Int’l Trade 1996), the availability of across-the-board relief in the form of class-wide tariff recoupment is unclear, at best.
Importers, investors, and others with a financial interest in the recovery of past tariff payments that have now been declared unlawful should therefore be mindful of protecting their individual rights. Whether tariff payors are entitled to recover any amounts paid since the Trafficking and Reciprocal Tariffs took effect is a question that may ultimately be decided by the Supreme Court. In the meantime, those paying tariffs should maintain thorough payment records, in case they need to prove damages in litigation. They should be cognizant of their right to file a protest under 19 U.S.C. § 1514 with customs officials to challenge unlawfully assessed tariffs, and to sue in the CIT under 28 U.S.C. § 1581(a) if Customs and Border Protection rejects the protest. They also should be mindful of statute-of-limitations and laches considerations (a catchall two-year limitations period exists, 28 U.S.C. § 2636(i), but payors should consult with counsel to examine their own claims and applicable limitations considerations to safeguard their claims) lest they find that valid rights to repayment are time-barred by failure to bring timely claims in court.
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