I indicated in a late January post in this blog what I thought the Supreme Court was going to do about tariffs. I said that it would likely affirm the decisions in the courts below striking down the tariffs, but that as to remedy it would find a way to allow the administration to avoid rebates.
I was right as to the questioning of the permissibility of the sweeping tariff powers the President sought to assign to himself here. I was wrong as to remedy.
As you surely all know by now, the Supreme Court by a 6-3 reading upheld one of the central pillars of our constitutional system, the unique role of the legislature in matters of taxation. And noted the obvious point that tariffs ARE taxation.
What did it say about remedy? Nothing, really. It left the matter open for further litigation, with the implication (I submit) that the importers who have been paying these charges since "Liberation Day" have a claim. The litigation is already underway. THAT I did not expect.
It need not be all that chaotic a process. After all, the records exist for which importer paid what. But I do note on the front page of the Wall Street Journal, 27 February 2026, the headline "Companies rush to get their tariff money back." At that point "at least 1,800 companies have filed lawsuits seeking refunds." They know what their records show. This process will play itself out unless Congress comes up with something that might supercede it.
I would guess that Congress could intervene in a way that would work to return the money to the ultimate payors -- the consumers of imported goods. And the courts would respect such Congressional action. But of course the US Congress is no longer for legislating. It is simply a forum for posturing.
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