It took only a few moments after the Supreme Court’s long-awaited tariff decision for President Trump to strike back by imposing an across-the-board 10% tariff. Within 24 hours, he increased it to 15%. Under Section 122 of the Trade Act of 1974, the tariffs remain in effect for the next 150 days. At that point, the tariff authority will expire unless Congress acts. Not to worry, the administration will have completed the mandatory work to continue the tariffs under yet another statute.

The same affected importers and others are likely to sue to prevent implementation. Still, given how long it took to secure a favorable decision on the original statute used to justify Trump’s torrent of tariffs, the administration will remain one step ahead of relief.

As for getting a refund for the illegal tariffs collected, Judge Kavanaugh, in his dissent, said that’s messy. Litigating the refunds could take years, according to Treasury Secretary Scott Bessent.

Nice try, Supreme Court, but the courts are just too slow to keep up with those bright administration people. Trump’s beloved tariffs will remain, while importers will grow old waiting for their refunds.

According to the administration and its media supporters, the importer’s High Court victory is just a mirage. Nothing has really changed. Trump will keep your money and keep collecting in the future.

That’s one plotline for the future of the Trump tariff regime, but there might be another script. The stage for court challenges to the administration is the Court of International Trade (CIT). This court will hear the demands of Costco, FedEx, and many others for refunds.

As soon as importers pay the first tariff dollars under the new 10% or 15% tariffs, many will file briefs imploring the same court to issue a restraining order against them.

In May of last year, this same court declared Trump’s “Independence Day Tariffs” illegal. At the time, others and I assumed the stay of the verdict’s implementation was in deference to the executive branch while the case was on appeal to higher courts.

Actually, the executive branch is due no such deference. The courts, instead, relied on the government attorney’s assurance of speedy refunds to alleviate any harm to the plaintiffs if they ultimately lost.

Now, the Government’s attorneys are going to make it more difficult to issue immediate refunds, having previously promised them to the courts to obtain the stay.

Rather than being in the catbird seat, the Government is in an impossible situation. The court should hold the Government to its word and order immediate refunds. As I pointed out in the last post, customs does this all the time, and now it’s done electronically.

If, for some reason, the Government confesses its lie and shows it is, in fact, impossible to make speedy refunds, the courts aren’t likely to take this deception lightly, placing the administration under the gun to make restitution.

Soon after the refund case, or even simultaneously, the same court will hear the case against the new 122 tariffs. This 1974 statute aims to prevent a balance-of-payments crisis that would undermine the dollar’s value. At the time of its passage, a balance-of-payments crisis occurred under the Bretton Woods gold-exchange standard, which was still fresh in legislators’ minds a few years earlier.

By that time, President Nixon had withdrawn the U.S. from the Bretton Woods Agreement and taken us off the gold standard. With the resulting floating exchange rates, as Nobel Laureate Milton Friedman predicted, the market would balance payments, so a crisis of this type could never occur. In the decades since, this proved to be the case, and 122 remains unused to this day.

What the administration has argued in all its tariff claims is a Balance of Trade emergency, but the Balance of Trade isn’t the same thing as the Balance of Payments, as an army of economists will attest in court.

The use of section 122 to justify Trump’s tariffs doesn’t fit the circumstances. You don’t have to take my word for it. When asked in court why the Government hadn’t used the section to apply tariffs rather than IEEPA, the Department of Justice (DOJ) lawyers conceded it was inappropriate.

As we all know, nothing is certain in court until you get a final decision, but given the above, this case is likely to be heard. There is no question of standing; we’ll likely see the plaintiffs from the IEEPA case joined by others.

No doubt a preliminary injunction will be at the top of the plaintiffs’ list. After $170 billion in tariffs collected under the illegal IEEPA, the pain is fully evident. Unless refunds from those tariffs are flowing, the court has no basis to deny an injunction or to stay any adverse tariff decisions.

Caught in a web of its own deceit, the Government’s new tariffs may never take off. Only swift action on the refunds might head off an injunction. Even then, the length of time and the amount of money involved in the first case may make the judges reluctant to inflict further harm on the plaintiffs.

People in the administration have to know all of this. The DOJ must be aware of what its own lawyers told the courts. Yet the worldwide uncertainty over U.S. tariffs continues to make planning difficult, if not impossible.

With tariffs unpopular and the fight over them continuing right into the midterm elections, it put Republican candidates further on the defensive. Commentators such as Jason Riley in the Wall Street Journal and others contend that the administration should accept the off-ramp offered by the court’s tariff decision. If tariffs are as bad as many economists believe, the other positives in the agenda, tax reductions and reduced government interference, will be a dim memory of the tariff turbulence.

Donald Trump has been a tariff-loving mercantilist since the 1980s. He isn’t about to give them up, even if it might save some of his fellow Republicans. Only the courts that issue and maintain an injunction against the 122 tariffs will force Trump to realize he doesn’t have the power unless he goes to Congress.

You don’t have to be a conspiracy theorist to question how supposedly smart people like Treasury Secretary Scott Bessent and Secretary of State Marco Rubio are unaware of the weak legal basis for unilateral executive action on such broad tariffs. Did Attorney General Pam Bondi really not know what your Assistant Attorney General, Bret A. Summate, told the courts about refunds?

Could key administration officials know what they’re up against in court but are quietly cheering on the courts to dump the tariffs? They can tell the president they tried everything, but that bad old courts did them in. It might be the ultimate escape from Trump’s tariff obsession, while giving some hope to embattled Republican candidates. It’s something to think about.