Neal Katyal, Federal Express, Costco and others are already suing for their tariff refunds. In order to appeal the initial trial court ruling that the tariffs were illegal, the trump DOJ represented to the courts that the tariffs would be refunded to the parties if these tariffs were found to be illegal. Those representations will be used in this upcoming litigation on the refunding of these illegal tariffs.
https://news.bloomberglaw.com/us-law-week/trump-faces-tough-legal-landscape-to-oppose-tariff-refunds
The Trump administration is likely to face legal obstacles if it argues against refunds for the tariffs struck down by the US Supreme Court — thanks to statements by Justice Department lawyers.
In a 6-3 decision last week, the justices declared President Donald Trump’s use of an economic emergency powers law illegal. The majority was silent on whether the companies that paid more than $170 billion in contested duties will get their money back, sending the issue to lower court to sort out. Justice Brett Kavanaugh warned in a dissent that a refund process was “likely to be a ‘mess.’”
Trump immediately signaled his administration might oppose payouts, saying, “I guess it has to get litigated for the next two years.”
Legal wrangling over refunds won’t play out on a clean slate, however. Over the past year, the Justice Department took positions before the US Court of International Trade that narrowed its paths to object going forward.
After the trade court initially declared the tariffs unlawful last May, the administration cited the availability of refunds as a reason for judges to let officials keep collecting tariffs for months amid the legal fight.
Government lawyers wrote in court filings last summer that plaintiffs whose cases went to the Supreme Court “will assuredly receive payment on their refund with interest” if they won. The Justice Department hasn’t used the same definitive language in later cases, but trade lawyers said judges are likely to hold the administration to those promises.....
A three-judge panel of the trade court made clear in a December ruling that it would hold the administration to its word. The judges denied a request by companies to pause the customs process until the Supreme Court ruled, explaining that they didn’t need to intervene given the government’s assurances.
The government couldn’t take “a contrary position” after it had “convinced” the trade court to accept that importers “will be able to receive refunds” even if their tariff obligations became final, the panel wrote. A legal principle known as “judicial estoppel would prevent the government from taking an inconsistent approach,” the judges said.
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