Neal Katyal-Tariffs were illegal. Now Trump wants to delay refunds. (gift link)

[LetMyPeopleVote]

The government said small businesses would be made whole. It’s time to pay up.

Link to tweet

https://www.washingtonpost.com/opinions/2026/02/24/tariff-refunds-trump-supreme-court/?pwapi_token=eyJ0eXAiOiJKV1QiLCJhbGciOiJIUzI1NiJ9.eyJyZWFzb24iOiJnaWZ0IiwibmJmIjoxNzcxOTA5MjAwLCJpc3MiOiJzdWJzY3JpcHRpb25zIiwiZXhwIjoxNzczMjg3OTk5LCJpYXQiOjE3NzE5MDkyMDAsImp0aSI6IjMwOTIxOGViLTE1NjktNGI5ZC05NzgyLTJjYTYzMzI4MTZhYiIsInVybCI6Imh0dHBzOi8vd3d3Lndhc2hpbmd0b25wb3N0LmNvbS9vcGluaW9ucy8yMDI2LzAyLzI0L3RhcmlmZi1yZWZ1bmRzLXRydW1wLXN1cHJlbWUtY291cnQvIn0.F5PZ4_XEN8jKe4-ZTDxDqDWUuDtSFwfaTMlCmoWv3Vo

When the U.S. government makes a representation in federal court, it is not a talking point. It is a commitment.

In the landmark tariff litigation decided by the Supreme Court on Friday, that commitment was explicit: to give refunds if President Donald Trump’s tariffs were declared illegal.

On behalf of small businesses, the Liberty Justice Center and I challenged the tariffs. Across the country, businesses paid billions in unlawful duties. At several points along the way, government lawyers assured judges that there would be no “harm” in allowing tariff collection to continue during the appeal process because duties later invalidated could be refunded — with interest. Businesses would be made whole. Indeed, after I argued the case before the Supreme Court on Nov. 5, the government doubled down on that promise in filings in lower court.

Those assurances carried weight. They were likely central to the appeals courts’ willingness to allow tariff collection to continue while the litigation advanced. Judges relied on the government’s representation that the injury was temporary and repairable. And our small businesses relied on it.....

On Tuesday, I am launching a task force composed of trade law experts and litigators to get these refunds back. We will be filing legal papers that detail the course of action ahead. The lower courts retain authority to enforce their judgments, including a permanent injunction granted on May 28. The Supreme Court has the power to ensure that its mandate is executed. And customs law provides mechanisms for refunding unlawfully collected duties through the liquidation and reliquidation process administered by U.S. Customs and Border Protection — that is, the agency’s routine final calculation and, when necessary, recalculation of duties owed on imported goods. Courts order such refunds regularly in trade cases.....

Courts rely on the credibility of the U.S. I saw this when serving as the federal government’s top courtroom lawyer. When government lawyers tell judges that there is no harm because refunds can always be issued with interest, courts take that promise seriously. If those assurances dissolve into years of delay, institutional trust erodes. Interest does not restore lost opportunity. It does not retroactively fund the hiring that never occurred or the inventory that was never purchased.

Our constitutional structure depends not only on courts issuing decisions but also on the executive branch faithfully executing them. Compliance should not be grudging. It should be immediate and complete.

In court, the government said businesses would be made whole.

I remember the Federal government promising the courts that the tariffs would be refunded in order to be able to stay the initial court ruling and appeal this case.

[LetMyPeopleVote]

1. Trump Faces Tough Legal Landscape to Oppose Tariff Refunds

Neal Katyal, Federal Express, Costco and others are already suing for their tariff refunds. In order to appeal the initial trial court ruling that the tariffs were illegal, the trump DOJ represented to the courts that the tariffs would be refunded to the parties if these tariffs were found to be illegal. Those representations will be used in this upcoming litigation on the refunding of these illegal tariffs.

Link to tweet

https://news.bloomberglaw.com/us-law-week/trump-faces-tough-legal-landscape-to-oppose-tariff-refunds

The Trump administration is likely to face legal obstacles if it argues against refunds for the tariffs struck down by the US Supreme Court — thanks to statements by Justice Department lawyers.

In a 6-3 decision last week, the justices declared President Donald Trump’s use of an economic emergency powers law illegal. The majority was silent on whether the companies that paid more than $170 billion in contested duties will get their money back, sending the issue to lower court to sort out. Justice Brett Kavanaugh warned in a dissent that a refund process was “likely to be a ‘mess.’”

Trump immediately signaled his administration might oppose payouts, saying, “I guess it has to get litigated for the next two years.”

Legal wrangling over refunds won’t play out on a clean slate, however. Over the past year, the Justice Department took positions before the US Court of International Trade that narrowed its paths to object going forward.

After the trade court initially declared the tariffs unlawful last May, the administration cited the availability of refunds as a reason for judges to let officials keep collecting tariffs for months amid the legal fight.

Government lawyers wrote in court filings last summer that plaintiffs whose cases went to the Supreme Court “will assuredly receive payment on their refund with interest” if they won. The Justice Department hasn’t used the same definitive language in later cases, but trade lawyers said judges are likely to hold the administration to those promises.....

A three-judge panel of the trade court made clear in a December ruling that it would hold the administration to its word. The judges denied a request by companies to pause the customs process until the Supreme Court ruled, explaining that they didn’t need to intervene given the government’s assurances.

The government couldn’t take “a contrary position” after it had “convinced” the trade court to accept that importers “will be able to receive refunds” even if their tariff obligations became final, the panel wrote. A legal principle known as “judicial estoppel would prevent the government from taking an inconsistent approach,” the judges said.

[LetMyPeopleVote]

2. We will fight tooth and nail for them if the federal govt tries to hold that money back."

Link to tweet