Georgetown Law

The Judicial Check on Executive Protectionism The economic landscape shifted violently last Friday when the Supreme Court of the United States issued a 6-3 ruling striking down the use of emergency powers to impose sweeping trade barriers. This decision marks a pivotal moment in fiscal policy, effectively curbing the administration's reliance on the International Emergency Economic Powers Act (IEEPA) to bypass Congressional authority on taxation. For a brief window, markets rallied as the specter of a trade war seemed to recede. However, the relief was short-lived. The administration immediately pivoted to "Plan B," utilizing Section 122 of the Trade Act of 1974 to implement a blanket 10% tariff, with threats to escalate to 15%. This mechanical shift illustrates a fundamental truth in modern geopolitics: while the legal justification for protectionism may change, the underlying policy intent remains stubbornly fixed. The $175 Billion Refund Logjam With the American Import Protection Act (AIPA) declared illegal, the focus now turns to the restitution of approximately $175 billion in collected duties. This process will not be a simple reversal of funds. Ryan Petersen, CEO of Flexport, emphasizes that the clock is ticking for businesses to file formal protests. Under customs regulations, importers typically have a 494-day window after a customs entry is filed to demand their money back. Legal experts anticipate a high probability of success for these claims, but the administrative hurdle remains daunting. The Department of Justice has signaled it will litigate these cases, potentially dragging out the timeline for years. Even with the U.S. Customs and Border Protection recently updating its systems to handle electronic refunds, the sheer volume of claims—ranging from global giants like Walmart to small specialized wholesalers—promises to create a bureaucratic "mess" of historic proportions. Winners, Losers, and the Foreign Importer Loophole While domestic corporations scramble for their share of the refund pool, a startling nuance has emerged regarding the identity of the beneficiaries. Historical data indicates that roughly 9% of U.S. trade involves a foreign company serving as the importer of record. However, during the height of the tariff regime, this figure spiked to 20% as companies sought to manipulate duty declarations through various fraudulent schemes. Because the law dictates that refunds go to the importer of record, a significant portion of these billions will likely be wired to offshore entities and foreign factories rather than domestic businesses. This creates a perverse outcome where the very actors who attempted to circumvent U.S. law may now receive a windfall from the U.S. Treasury. Meanwhile, the American consumer—who ultimately bore the brunt of these costs through higher shelf prices—remains entirely excluded from the restitution process. The Shift to Targeted Sectoral Investigations The demise of broad-based emergency tariffs does not signal the end of protectionism; it merely changes the weapon of choice. Peter Harrell of Georgetown Law notes that the administration will now lean more heavily on Section 301 and Section 232 investigations. Unlike the "tariff Sharpie" approach, these statutes require rigorous fact-finding by the Office of the United States Trade Representative. This transition increases the complexity of global logistics. Future tariffs will likely be sector-specific, targeting categories like steel, aluminum, or even office furniture under the guise of national security. For businesses, this means moving away from a predictable flat rate toward a fragmented landscape of Harmonized Schedule (HS) codes and complex line-item calculations. The "one true winner" in this scenario is neither the worker nor the consumer, but the class of trade lawyers and consultants required to navigate this manufactured complexity. Conclusion: The Legacy of a Wealth Transfer As the dust settles, the long-term impact of these trade policies looks increasingly like a massive wealth transfer from regular Americans to large corporations and foreign entities. With as much as 63% of tariff costs passed on to consumers, the inflationary pressure of the last year can be directly linked to these trade barriers. The Supreme Court has restored the rule of law, but it cannot restore the purchasing power lost by the American public. We are left with a system that has degraded international alliances, increased domestic prices, and created a litigation-heavy environment that offers no relief to those who paid the highest price.