Robert A. Calandra and Patrick C. Reed
Editor’s note: Mensa is not a political organization and as such does not take political positions. However, many Mensa members, including Robert A. Calandra, are lawyers and can give us valuable insight on the law and public policy. Robert A. Calandra and Patrick C. Reed published this memo on March 2, 2026. An addendum adds updates to March 27, 2026.
Now that the Supreme Court has confirmed that additional tariffs assessed starting in February 2025 under the International Emergency Economic Powers Act (IEEPA) are illegal, the question foremost on the mind of the more than 300,000 importers that paid approximately $175 billion in IEEPA duties on approximately 35 million customs entries is: how do I get my money back?
The bad news is that at present, we don’t know all the details for certain. The good news is that in the very near future both the Court of International Trade (CIT) and Customs and Border Protection (CBP) will be providing guidance. The Supreme Court’s decision was issued on February 20, 2026 and becomes final in 32 days (around March 24, 2026), allowing time for the administration to file a rarely granted petition for rehearing. CBP has statedthey are beginning to review their responsibilities now that the tariffs are illegal.
In addition, several pieces of legislation have been introduced in Congress to address/oversee the refund process. Common goals of each include prompt refunds, with interest, regardless of the liquidation status of an entry, of all IEEPA duties. It is questionable whether any such legislation would be signed by the President.
In any event, if you or your company was one of the 300,000 importers that paid IEEPA tariffs, you should expect that you will be receiving a refund. The Supreme Court has ruled that, under the US Constitution, where a tax is completely unlawful and invalid, the government has “no choice but to ‘undo’ the unlawful deprivation [of the taxpayer’s property] by refunding the tax previously paid” McKesson Corp. v. Florida Alcoholic & Tobacco Div., 496 U.S. 18, 39 (1990).
And not only could you receive a refund of IEEPA duties, but you should be getting interest as well. The current quarterly rate for interest on Customs refunds is 6 percent. (President Trump has threatened to extend this litigation for five more years, but to do so would cost approximately $10 billion in interest yearly. It might be more cost effective to hire additional temporary personnel to help process the refunds.)
Furthermore, as discussed below, depending on what the CIT and CBP decide about the procedural details, you may or may not have to take action. In his dissenting opinion, Justice Kavanaugh complained that refunding the IEEPA duties could be a “mess.” On the contrary, the general process for refunding overpayments of import duties is not messy at all. Customs brokers, customs attorneys, and many importers are familiar with terms such as “post summary corrections,” “protests,” and “date of liquidation” and routinely file for refunds with CBP or the CIT. For IEEPA tariffs, since every IEEPA duty was assessed under a specific tariff provision in Chapter 99, and, as we understand it, CBP’s automated system can associate that tariff provision with an importer number, entry number, date of entry, and IEEPA duties paid, it would seem to be quite easy for CBP to automatically access which importers get IEEPA refunds and how much they get.
Even so, the volume of work in processing the refunds is daunting. In a 2020 CBP seminar on protests, CBP announced that in 2020 the number of protests on hand with CBP had “skyrocketed” to over 100,000 protests. For the IEEPA tariffs, the mess is that a system designed to handle 100,000 refund requests will soon have to handle up to 35 million refund requests.
Since the Commissioner of Customs has the authority to extend or suspend liquidation of entries, we believe CBP should use this authority to extend or suspend every IEEPA entry, or at least consider doing so. This will allow CBP additional time to process refunds on its own initiative.
Under this scenario, the CIT does not have to get involved except in an oversight capacity.
Are IEEPA Duties Protestable?
It seems to us that one legal procedural issue needing to be addressed in the whole refund process is: are IEEPA tariffs protestable? The statute governing protests, 19 USC §1514, expressly provides (with certain exceptions not applicable here) that certain listed decisions of Customs are final and conclusive on all persons unless a protest is filed in accordance with section 1514, or unless a civil action contesting the denial of a protest, in whole or in part, is commenced in the CIT. That is, a protest must be based on, or in response to, a decision made by Customs. Section 1514 decisions include:
- The classification and rate and amount of duties chargeable
- All charges or exactions of whatever character within the jurisdiction of the Secretary of the Treasury
A protest has to be filed within 180 days of the date an entry is liquidated or it will be “final and conclusive upon all persons (including the United States and any officer thereof) unless a protest is filed in accordance with this section.”
Now, it would not be unreasonable to conclude that IEEPA duties are duties and, as such, they must be protested within 180 days from the date of liquidation. However, there is authority for concluding that protests cannot be used to challenge trade decisions by the President. In US Cane Sugar Refiners’ Ass’n v. Block, 544 F. Supp. 883, 887 (Ct. Int’l Trade), aff’d, 683 F.2d 399 (CCPA 1982), where the plaintiff challenged a Presidential Proclamation that imposed quotas on the importation of sugar, the court recognized that a protest could not provide the plaintiff with relief at the administrative level because “Customs officials, who would review a protest claiming that [the proclamation was] invalid, obviously [had] no authority to override the presidential proclamation and admit over-quota sugar.” 3 CIT 196, 200–02, 544 F. Supp. 883, 886–87 (1982). Therefore, the court determined that no remedy would be available under 28 USC § 1581(a) [protest jurisdiction] and, as such, jurisdiction under 28 USC § 1581(i) [residual jurisdiction] was proper. The Federal Circuit reconfirmed the reasoning of Cane Sugar Refiners in Thomson Consumer Electronics, Inc. v. United States, 247 F.3d 1210, 1213 (Fed. Cir. 2001) (holding that Customs officials cannot adjudicate the constitutionality of a statute in a protest); see also Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994) (holding that a protest cannot be used to challenge antidumping duty determinations because CBP has a ministerial role in liquidating antidumping duties and “cannot modify Commerce’s determinations, their underlying facts, or their enforcement”); Patrick C. Reed, The Role of Federal Courts in US Customs & International Trade Law pp. 224-26 (1997) (discussing Cane Sugar Refiners).
In a case decided in December 2025, AGS Co. Automotive Solutions v. United States, Slip Op. 25-154 (December 15, 2025), the CIT’s decision suggests that the collection and assessment of IEEPA duties are non-protestable actions because they were taken pursuant to executive orders of the President. As such, the only method importers can take to obtain a refund is to file a timely case under the CIT’s 1581(i) residual jurisdiction.
At that time, the Supreme Court had not yet decided the IEEPA case. The CIT’s reasoning — protests against liquidations of IEEPA duties are not necessary since CBP has no authority to disregard a presumptively valid presidential executive order — is consistent with past precedent. But after the Supreme Court’s decision becomes final, the CIT and/or CBP could conclude that importers can and possibly have to protest IEEPA liquidations since they were assessed under illegal executive orders. It seems to us that now that it has been determined that the IEEPA duties were/are illegal, CBP officials must make the “decision” to refund all IEEPA duties. They can (must?) make this decision either before an entry is liquidated or after liquidation if an entry is protested.
We would expect clarification from the CIT in the near future of whether IEEPA tariffs issues are now protestable. Again, the answer to this question will inform the entire refund process going forward. In the meantime, if you have any entries that have liquidated, we strongly encourage you to file a protest until this issue is resolved, even if you have filed a case in the CIT.
If the CIT concludes that a protest cannot challenge IEEPA tariffs even after the Supreme Court decision holding that those tariffs are illegal has become final, the CIT’s decision could be appealed to the Court of Appeals for the Federal Circuit. It is possible that if the CIT claims it has jurisdiction of all IEEPA entries under 28 USC § 1581(i) [residual jurisdiction], this ruling could be reversed on appeal if the Federal Circuit concludes the protest remedy leading to 28 USC § 1581(a) [protest jurisdiction] is correct. In sum, therefore, as an importer expecting IEEPA refunds, you would want to make sure you have filed timely protests.
Again, the protest statute expressly provides that a protest has to be filed within 180 days of the date an entry is liquidated or it will be “final and conclusive upon all persons (including the United States and any officer thereof) unless a protest is filed in accordance with this section.”
Addendum
On March 4, the CIT ordered the CBP to refund IEEPA duties on all liquidated and unliquidated entries, regardless of whether an importer has filed a complaint. (The President has 60 days from the date of that order to file an appeal at the Federal Circuit and is likely to do so.) However, the CIT itself suspended that order on March 6, after a conference in which a CBP representative explained that CBP did not have the technology or resources to comply with the court-ordered entry-by-entry liquidation and reliquidation on the specified timeline. Instead, CBP reported that it is developing a new multistep automated refund functionality (Consolidated Administration and Processing of Entries [CAPE]) within its Automated Commercial Environment (ACE). On March 19, CBP reported that its ACE upgrades were 73% complete. Importers and their brokers and lawyers need to be alert for new developments in this rapidly developing situation.
Disclaimer: Nothing in this article is intended to create an attorney-client relationship and should not be construed as legal advice. In no event shall Robert A. Calandra, Attorney at Law, Patrick C. Reed, or Simons & Wiskin be liable for any special, direct, indirect or consequential damages relating to this material. This article may be freely circulated with attribution to the authors.
Robert A. Calandra, Attorney at Law, Fairfield, NJ. Tel.: 973-244-0441. E-mail: .
Patrick C. Reed, Simons & Wiskin, New York City. Tel: 732-316-2300 (firm offices). E-mail: .