Wait for Supreme Court tariff decision reveals potential fallout

WASHINGTON — The Supreme Court has gone more than three months without issuing a decision since it heard oral arguments on the legality of President Donald Trump’s worldwide tariffs, as evidence of the potential fallout has emerged across Washington.

The justices kept the tariffs in place as they weigh Trump’s signature domestic and foreign policy lever, which has now collected more than $130 billion, according to U.S. Customs and Border Protection statistics.

Dozens of companies have made moves to allow for refunds in case of a tariff ruling in their favor during the wait, and Trump himself warned of “a complete mess” when it comes to paying back foreign companies who invested here to avoid them.

And the House last week passed a joint resolution that would end Trump’s 35% tariff on Canadian goods imports, a first demonstration of the size of House Republican resistance to the administration’s trade agenda.

It also ended up illustrating how Congress might be left with little recourse if the Supreme Court ultimately sides with Trump — an issue some justices asked about at oral arguments.

Speaker Mike Johnson called the vote a “fruitless exercise and a pointless one” in comments to reporters, because Trump could veto the resolution and “there’s not a two-thirds majority in both chambers to override the veto, so it’s not going to change the policy in the end anyway.”

And Johnson pointed out the Supreme Court decision was imminent. “It could come out any day,” the Louisiana Republican said.

The suspense over how the justices rule could end within a week, as the court has announced it may release opinions on Friday; next Tuesday, Feb. 24; and next Wednesday, Feb. 25.

But, if not, the suspense could build.

The Supreme Court moved faster than normal last year when in September it agreed to decide the challenge to Trump’s tariffs and set an expedited briefing schedule and oral arguments for Nov. 5. More than 100 days now have passed.

The justices have acted faster in other cases. Last year, the court issued a decision one week after oral argument in a case over the legality of a law requiring social media giant TikTok divest its American subsidiary, and six weeks after oral argument in a case about injunctions that had halted Trump’s executive order on birthright citizenship.

In an appearance on CBS, Justice Ketanji Brown Jackson hinted the delay in the tariffs case came from the justices’ focus on the seriousness of the case.

“The court is going through its process of deliberation and, you know, the American people expect for us to be thorough and clear in our determinations and sometimes that takes time,” Jackson said.

Some observers have read into that delay, including Sen. Ted Cruz, R-Tex. On his podcast last week, Cruz argued that the more than $130 billion collected by the U.S. government makes affirming the legality of the tariffs more likely.

“So a year ago, I think the court probably would have ruled differently, but I think today you’re going to get five justices to say, we’re too far down the road, too much has been implemented, and this is too core to how this president is implementing foreign policy, because foreign policy under the Constitution is given principally to the president,” Cruz said.

Ryan Mulholland, a senior fellow at the Center for American Progress focusing on international economic policy, said the outcome of the case will have massive impacts for domestic and foreign policy. But he cautioned about reading too much into the status quo of waiting for the decision.

“All eyes, not just in the industry that is dealing with import tariffs, but other countries that have agreed to deals with the Trump administration, are going to be on this,” Mulholland said.

Numerous reports have emphasized the growing cost of the tariffs on American consumers. A Congressional Budget Office report published last week projected that inflation would continue to increase in the next three years because of tariffs, and that American consumers bore the cost of about 70% of tariffs.

More than 100 companies have filed lawsuits seeking refunds from the tariffs if the Supreme Court decision kicks off such a process.

Jason Waite, the leader of Alston & Bird’s international trade practice, characterized the lawsuits that have been filed so far as a “belt and suspenders” approach from companies that wanted to guarantee they receive a refund of the tariffs they have paid.

“In my mind I think it shouldn’t be controversial or a mess or complicated if the Supreme Court finds these tariffs illegal that the courts can handle refunds,” Waite said. “Yes, this might be a lot of money, and yes, this effects a lot of importers, but it can be done.”

In Congress

Last week, three Republicans joined Democrats last week to scuttle a rule to continue blocking legislation to overturn Trump’s emergency declarations justifying tariffs. Then, six Republicans joined Democrats in a 219-211 vote to pass a resolution to overturn Trump’s emergency declaration justifying 35% tariffs on Canadian goods, the first from the chamber.

Mulholland said those votes were a sign of growing discomfort within Trump’s own party about the tariffs.

“We’re seeing the impact of Trump’s policies and the more those feel real the harder and harder it gets for Republicans in particular to defend this president’s actions,” Mulholland said.

Democratic leadership has vowed to keep the pressure on Republicans, trying to peel off members to pass measures unpopular with the GOP base. At a press conference last week, Rep. Hakeem Jeffries, D-N.Y., said Democrats intended to continue to force votes on getting rid of Trump’s tariffs.

That would add to months of pressure from Senate Democrats, which has resulted in four successful votes on measures that would repeal the emergency declarations.

Rep. Brendan F. Boyle, D-Pa., the ranking member of the House Budget panel, said that while he’s confident the measures will pass, they’ll face an almost certain veto. “The reality is the president is going to likely veto this bill, and so I wouldn’t be optimistic that we would have enough Republicans to join us on a veto override if and when it comes to that,” Boyle said.

Kevin Hassett, director of the president’s National Economic Council, told reporters last week the intent is to continue pushing back on efforts to repeal the tariffs.

“We’re disappointed in what these people have done and I’m sure that the president will make sure that they don’t repeal his tariffs,” Hassett said.

Trump has promised political reprisals against Republicans who vote in favor of the tariffs, including backing opponents in primaries.

The cases are Learning Resources Inc. v. Trump and Trump v. V.O.S. Selections.