Hilariously, the Trump Administration defeated the initial demand for a stay of enforcement/collection of the tariffs by claiming there would be no material harm to the importers because the government could reimburse the funds if they ultimately lost the issue on the merits.
Anyway, from Covington:
“…
First, the Administration may seek to avoid issuing refunds by arguing that at least some of the tariffs imposed under existing IEEPA Executive Orders (“EOs”) nonetheless remain effective, as to both past and future imports, because they are justified by other authorities not explicitly identified in the EOs—particularly those not requiring predicate agency action. This strategy would leverage the fact that the President is not himself subject to the Administrative Procedure Act (which requires agencies to follow certain procedural and notice requirements), and generally need not explain his decision-making except as required by statute. Though there appears to be little precedent for such a strategy, and it would face obstacles, the Administration may at least delay—and perhaps limit—refunds by pursuing it.
The viability of this strategy would depend first on the relief ordered in the IEEPA case now pending before the Supreme Court. For instance, even if the Supreme Court holds the tariffs unlawful, it is unlikely to weigh in on the proper remedy—in particular, on whether any importer can seek refunds from the unlawfully imposed tariffs, or instead only the plaintiffs to the case (or perhaps no importers at all). Instead, the Supreme Court is likely to remand the case to the lower courts to make that remedial determination in the first instance. Any remedy that enjoins agencies from implementing President Trump’s EOs would require him to issue new actions re-authorizing the tariffs under different authorities.
The Administration, though, may contest any such broad remedy by arguing that it is not permissible under recent Supreme Court precedent and should instead be limited to the plaintiffs to the case. In addition, the Administration may claim that the tariffs imposed remain lawful—in whole or in part—based on other tariff authorities not explicitly identified in the IEEPA EOs.
This latter argument, to be sure, would face challenges. While other statutory bases to impose tariffs require no predicate agency investigation or action, their use is limited to specific factual circumstances that are narrower than IEEPA’s declaration of an international emergency.…”
On November 5, 2025, the U.S. Supreme Court is set to hear the Trump Administrations appeal of lower ...
www.cov.com