The U.S. Supreme Court will hear two major cases on November 5, 2025 that challenge the legality of tariffs of up to 125% imposed under the International Emergency Economic Powers Act (IEEPA). The outcome is uncertain: the Court could uphold the tariffs, strike them down, or send the cases back to lower courts for further review, which could tie up the ultimate decisions for months or years.

For importers, the critical issue is timing. Refund requests for duties paid must be filed before customs entries “liquidate,” which typically happens 314 days after filing. Waiting for the Supreme Court’s decision could mean missing these deadlines and losing the chance to recover duties if the tariffs are eventually ruled unlawful. So, importers should act now by considering options like requesting liquidation extensions, filing protests, or seeking legal advice to preserve their rights.

Background: The IEEPA Tariffs
In 2025, President Trump imposed tariffs of up to 125% on imported goods under the International Emergency Economic Powers Act of 1977 (IEEPA). These tariffs were tied to national emergencies declared for:

• Fentanyl imports from China, Canada, and Mexico;
• Trade deficits affecting U.S. manufacturing capacity (reciprocal tariffs); and
• Secondary actions later extended to goods from India and Brazil.

Importers and 12 U.S. states filed lawsuits arguing that IEEPA does not give the President authority to levy tariffs.

Legal Uncertainty and Jurisdiction
Two key cases — Trump v. V.O.S. Selections and Learning Resources v. Trump — will be heard by the Supreme Court in November.

• V.O.S. Selections originated in the Court of International Trade (CIT), which handles tariff cases.
• Learning Resources originated in the U.S. District Court for the District of Columbia, which handles constitutional and statutory issues.

Jurisdiction matters. If IEEPA authorizes tariffs, CIT is the right venue. If not, Federal Court is. The Supreme Court could dismiss one case entirely on jurisdictional grounds.

Lower Court Decisions

• CIT (May 2025): Found reciprocal tariffs unconstitutional and fentanyl tariffs unrelated to the declared emergency.
• U.S. Court of Appeals for the Federal Circuit (CAFC) (Aug 2025): Upheld the CIT decision, but did not address all underlying issues.
• U.S. District Court for the District of Columbia (DDC): Determined IEEPA is not a law providing for tariffs, the tariffs are ultra vires (or, exceed the President’s authority), and the agency defendants violated the Administrative Procedures Act.

These tracks have now been consolidated for Supreme Court review.

Historical Context

• 1971: Nixon used the Trading with the Enemy Act (TWEA) authorizing the president to regulate imports to impose a temporary 10% tariff.
• 1974: Yoshida Int’l v. U.S. upheld Nixon’s tariffs as reasonable.
• 1977: Congress removed tariff authority from TWEA during national emergencies and created IEEPA, which also authorizes the President to regulate imports.

The U.S. Constitution gives Congress—not the President—the power to impose tariffs, and courts have consistently treated that authority as belonging to the legislative branch unless clearly delegated. In its 2025 decision, the Court of International Trade emphasized that interpreting IEEPA to let the President levy tariffs would amount to an unconstitutional transfer of Congress’s tariff-making power.

The core question: Did Congress intend IEEPA to grant the President tariff authority, or was that power reserved exclusively for Congress?

Possible Supreme Court Outcomes

Tariffs Upheld: If the Court rules that IEEPA authorizes the President to impose tariffs, importers will need to continue paying duties as assessed. The Court may also remand the cases back to lower courts to evaluate the specific legality of how these tariffs were implemented, meaning the litigation could stretch on for years. Even in this outcome, the Court might set boundaries on how far the President’s authority extends under IEEPA, creating new parameters for future tariff actions.

Tariffs Struck Down: If the Court finds that IEEPA does not give the President authority to levy tariffs during non-war emergencies, the current tariffs would no longer be enforceable. Customs & Border Protection (CBP) would be required to stop collecting duties under IEEPA and refund tariffs already paid that are still eligible for recovery. This outcome would affirm that tariff authority resides with Congress, not the President, and could narrow the scope of executive power in trade matters moving forward.

Partial Ruling: The Court could take a narrower path, striking down some portions of the tariffs while upholding others, or carving out specific limits on how IEEPA can be used. For example, the Court might decide that tariffs are permissible only when tied directly to an “unusual and extraordinary threat” identified in a national emergency declaration, but not for broader economic issues like trade deficits. This scenario would leave importers with a mix of valid and invalid tariffs and force further litigation to define the exact boundaries.

Jurisdiction-Only Ruling: The Court may avoid ruling on the merits entirely and instead decide the cases on jurisdictional grounds. Because one case originated in the CIT and the other in U.S. District Court, the Court could dismiss one or both cases, instructing the parties to refile in the correct venue. This would prolong uncertainty, as importers would have to wait for new lower-court proceedings and appeals before the underlying legal questions are resolved.

What Importers Should Do Now
Because strict filing timelines apply, importers cannot simply wait for the Supreme Court to act. Steps should be taken now to preserve the right to recover duties if the tariffs are eventually struck down. Here are the main options available:

1. Request an Extension of Entry Liquidation

• By law, customs entries “liquidate” — meaning duties become final — 314 days after the entry is filed, but can be shorter if a change is made to the entry after duties are paid to CBP.
• Importers can ask their assigned CBP Entry Specialist to extend liquidation for up to 12 months at a time under 19 C.F.R. §159.12. This provides additional time for the litigation to progress before entries become final.
• However, importers should first speak with their bond provider. Because sureties typically hold collateral until all entries tied to a bond are liquidated, extending liquidation could mean collateralized funds are tied up longer than expected.

2. File Protests with CBP

• Importers may file a protest under 19 CFR Part 174 for duties paid within 180 days of liquidation.
• In the protest, importers can request that CBP withhold action until the courts resolve the legality of the IEEPA tariffs.
• Protests may challenge the rate and amount of duties chargeable, which may include uncertain or unlawful tariffs.
• Filing protests helps ensure that specific entries remain eligible for any relief the courts might eventually grant.
• Keep in mind: CBP allows only one protest per entry per merchandise category. Importers should be strategic and include IEEPA tariffs when filing protests related to other issues. Protests do not delay the time for payment of a duty, but they can seek refund of duties incorrectly assessed.
  Protest decisions are appealable to the Court of International Trade.

3. Consider Further Legal Action

• Importers may want to consult trade counsel about whether to initiate their own lawsuits. If the Supreme Court ultimately limits relief to the parties directly involved in the pending cases, others may need to file separately to benefit.
• Importers should also understand that if they have not exhausted administrative remedies (such as protests), courts may deny future claims. Strict deadlines apply here as well: denied protests must be challenged at the Court of International Trade under 19 C.F.R. §174.31.

Bottom Line
The Supreme Court’s November hearing could reshape presidential authority over trade policy, but the timeline for final resolution is far from certain. Importers who want to preserve their ability to recover duties should act now by filing protests, extending liquidation, or preparing for additional legal steps.

For guidance on how to protect your business, contact Flexport’s Trade Advisory Team at advisory@flexport.com.

Disclaimer: This communication is provided for informational purposes only and should not be relied upon for any legal, business, or financial decisions. This information is based on our current beliefs, expectations, and assumptions, about which there can be no assurance or guarantee due to anticipated and unanticipated events that may occur and individualized circumstances. This communication was prepared to the best of our knowledge and research; it is your responsibility to verify current regulatory, legal, and industry developments. Neither Flexport nor its advisors or affiliates are liable for any losses that arise in any way due to reliance on the contents contained in this communication.