The government said small businesses would be made whole. It’s time to pay up.
https://www.washingtonpost.com/opinions/2026/02/24/tariff-refunds-trump-supreme-court/?pwapi_token=eyJ0eXAiOiJKV1QiLCJhbGciOiJIUzI1NiJ9.eyJyZWFzb24iOiJnaWZ0IiwibmJmIjoxNzcxOTA5MjAwLCJpc3MiOiJzdWJzY3JpcHRpb25zIiwiZXhwIjoxNzczMjg3OTk5LCJpYXQiOjE3NzE5MDkyMDAsImp0aSI6IjMwOTIxOGViLTE1NjktNGI5ZC05NzgyLTJjYTYzMzI4MTZhYiIsInVybCI6Imh0dHBzOi8vd3d3Lndhc2hpbmd0b25wb3N0LmNvbS9vcGluaW9ucy8yMDI2LzAyLzI0L3RhcmlmZi1yZWZ1bmRzLXRydW1wLXN1cHJlbWUtY291cnQvIn0.F5PZ4_XEN8jKe4-ZTDxDqDWUuDtSFwfaTMlCmoWv3Vo
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.....
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.....
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.
I remember the Federal government promising the courts that the tariffs would be refunded in order to be able to stay the initial court ruling and appeal this case.
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