Neal Katyal is a partner at Milbank LLP and was acting U.S. solicitor general under President Barack Obama.
When the U.S. government makes a representation in federal court, it is not a talking point. It is a commitment.
In the landmark tariff litigation decided by the Supreme Court on Friday, that commitment was explicit: to give refunds if President Donald Trump’s tariffs were declared illegal.
On behalf of small businesses, the Liberty Justice Center and I challenged the tariffs. Across the country, businesses paid billions in unlawful duties. At several points along the way, government lawyers assured judges that there would be no “harm” in allowing tariff collection to continue during the appeal process because duties later invalidated could be refunded — with interest. Businesses would be made whole. Indeed, after I argued the case before the Supreme Court on Nov. 5, the government doubled down on that promise in filings in lower court.
Those assurances carried weight. They were likely central to the appeals courts’ willingness to allow tariff collection to continue while the litigation advanced. Judges relied on the government’s representation that the injury was temporary and repairable. And our small businesses relied on it.
Now the Supreme Court has ruled, and the tariffs have been invalidated. Yet Trump and Treasury Secretary Scott Bessent are suggesting that refunds could take years, entangled in further litigation and administrative delay.
This is wrong. The government cannot tell courts that refunds are simple and inevitable when seeking relief — and then imply they are complex and distant when the time comes to pay. The rule of law does not operate on shifting premises. If judicial assurances are treated as temporary litigation tactics rather than binding commitments, the institutional credibility of the United States suffers.
On Tuesday, I am launching a task force composed of trade law experts and litigators to get these refunds back. We will be filing legal papers that detail the course of action ahead. The lower courts retain authority to enforce their judgments, including a permanent injunction granted on May 28. The Supreme Court has the power to ensure that its mandate is executed. And customs law provides mechanisms for refunding unlawfully collected duties through the liquidation and reliquidation process administered by U.S. Customs and Border Protection — that is, the agency’s routine final calculation and, when necessary, recalculation of duties owed on imported goods. Courts order such refunds regularly in trade cases.
These refunds are urgent for thousands of American businesses. And to be clear, these refunds are not flowing to foreign governments. They are owed to U.S. manufacturers, retailers, family-owned importers and midsize companies that employ American workers and invest in American communities.
Many absorbed the cost of tariffs to remain competitive. Others had no choice but to raise prices, passing along increases triggered by a sudden tariff regime that courts have now determined exceeded statutory authority. Consumers who bore those higher prices may never receive a refund. The law has no practical way to reverse every downstream price increase caused by an unlawful tariff. But it can — and must — return the unlawfully collected duties to the businesses that paid them.
Some businesses delayed expansion, paused hiring or reduced inventory purchases while the case moved forward. Returning these funds is not an accounting exercise. It is capital returning to the American economy.
Refunded dollars will be invested in plants, equipment, payroll and inventory. They will finance growth. In many cases, they will allow businesses to lower prices that were artificially inflated by tariffs. That money will circulate here — not overseas.
The government cannot invent excuses for delay. Every day without repayment is a day that American businesses are deprived of capital that belongs to them. This is not a debate about trade philosophy. Reasonable people disagree about tariffs as economic policy. But once a court determines that a particular tariff regime is unlawful, the consequence is straightforward: Money collected without authority must be returned, and returned promptly.
Courts rely on the credibility of the U.S. I saw this when serving as the federal government’s top courtroom lawyer. When government lawyers tell judges that there is no harm because refunds can always be issued with interest, courts take that promise seriously. If those assurances dissolve into years of delay, institutional trust erodes. Interest does not restore lost opportunity. It does not retroactively fund the hiring that never occurred or the inventory that was never purchased.
Our constitutional structure depends not only on courts issuing decisions but also on the executive branch faithfully executing them. Compliance should not be grudging. It should be immediate and complete.
In court, the government said businesses would be made whole.
Those businesses are American. The money is theirs and should be returned to them without delay.
Post Opinions wants to know: If you run a business, what opportunities did your company lose because capital was redirected to tariffs? Send us your response, and it might be published as a letter to the editor. wapo.st/tariff_costs
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