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The Supreme Court heard arguments about President Trump’s tariff authority in early November 2025—95 days ago. The justices granted expedited review, which means the Court fast-tracks cases it considers urgent. Then they proceeded to deliberate longer than they typically take for cases that weren’t considered urgent at all.
During those 95 days, businesses that paid tariffs don’t know if they’ll get refunds. Companies trying to plan their 2026 budgets can’t reliably calculate their cost of goods. Federal customs officials continue collecting duties under authority that six justices appeared deeply skeptical about during oral arguments.
The delay itself has become the story—not because 95 days is unusual, but because the Court itself signaled this case demanded speed, then failed to maintain that speed once they started writing.
Historical Patterns for Expedited Cases
When the Supreme Court grants expedited review, it’s making a specific promise: this matter is so time-sensitive that we’re going to compress our normal timeline. We’ll hear arguments within 60 days instead of 120. We’ll decide quickly because people need an answer.
For the tariff case, that promise looked real at first. The justices agreed to hear the case on September 9 and scheduled arguments for November 5—57 days later, roughly half the normal timeline. Then oral arguments happened, and the urgency evaporated.
While expedited cases vary considerably in their timelines depending on complexity and consensus among justices, many produce decisions within a timeframe considerably shorter than standard cases. The tariff case has now exceeded 95 days—longer than many expedited cases but still faster than the typical 113-to-122-day average for decisions where justices disagree on the reasoning or outcome. This suggests the justices are wrestling with something genuinely difficult rather than deadlocked, but they created the expectation of speed and then broke it.
Cases that decide quickly—in that 70-to-90-day window—usually involve either straightforward legal questions or broad consensus among the justices. When cases stretch well beyond 100 days, they typically feature multiple separate opinions requiring extensive circulation and revision.
At 95 days, the tariff case sits in an awkward middle ground. Too slow for the expedited treatment promised, but too fast to suggest complete deadlock. The timeline points to a majority ready to strike down the tariffs—that much seemed clear from oral arguments—but struggling to agree on exactly how to explain that decision and what happens next.
The Money Keeps Piling Up
While the justices deliberate, the financial stakes compound daily.
The federal government collected approximately $78 billion in total customs duties in fiscal year 2024. Trump’s tariff policies pushed that to $195 billion in 2025. The tariffs imposed under the International Emergency Economic Powers Act represent the majority of tariffs by count, though other authorities including Section 232 national security tariffs account for roughly one-quarter of the revenue increase. If the justices invalidate the IEEPA tariffs, it would trigger the largest potential refund operation in customs history.
That money isn’t sitting in an escrow account waiting to be returned. It’s been deposited into the general Treasury fund, mixed with all other federal revenues, and in many cases already spent through normal appropriations. If refunds are ordered, Treasury will need to figure out how to process claims from potentially hundreds of thousands of importers, verify which entries were subject to emergency powers tariffs versus other authorities, and cut checks or process electronic transfers for sums that could rival the entire annual individual tax refund program.
The Deadline Problem: Locked-In Entries
Under customs regulations, import entries typically become locked in—you can’t change or challenge them anymore—approximately 314 days after the entry summary is filed.
Once an entry locks in, importers lose their right to file formal objections with Customs and Border Protection. They have to sue in the Court of International Trade instead, relying on broader legal powers to do what’s fair in unusual situations that are harder to invoke and take longer to resolve. If they miss that window entirely—if they don’t file a case before the decision comes—they could be permanently barred from getting refunds even if the tariffs are declared unconstitutional.
This creates what trade lawyers call the “tariff revenue trap.” Companies that paid potentially illegal tariffs are watching their legal rights expire while waiting for the justices to decide whether those tariffs were illegal. Every day that passes pushes more entries past their deadlines, and every locked-in entry represents a company that might lose its refund rights forever.
Large companies with sophisticated customs compliance departments can manage this process. They have systems to track which tariffs apply to which shipments, lawyers to file protective cases, and resources to maintain documentation. Smaller importers often lack those capabilities. Many use third-party customs brokers and may not even realize their refund rights are expiring while the justices deliberate.
What’s Taking So Long
The extended timeline suggests the justices are struggling with questions that go beyond the straightforward question about what the law says that dominated oral arguments. Three distinct problems appear to be causing the delay.
The first question is the easiest: does the phrase “regulate importation” in the International Emergency Economic Powers Act authorize the president to impose tariffs? The lower courts said no—”regulate” means control whether and how goods enter the country through licensing, quotas, or prohibitions, but doesn’t encompass the power to impose unlimited duties at rates set by presidential discretion. Multiple justices at oral argument indicated skepticism of the government’s broader reading. That question probably commands a majority.
The second question involves a legal principle that Congress can’t give the president unlimited power over major economic decisions without being clear about it. Six justices raised concerns about whether “regulate importation” provides sufficiently clear authorization for the power to collect billions in tariffs affecting fundamental aspects of international trade. The justices appeared divided on how this principle applies in foreign affairs contexts, with different justices suggesting different levels of deference to executive authority in national security matters. This disagreement about the legal principles that should apply likely explains much of the delay.
The third question is the hardest: what happens to the money already collected? Does the decision order full refunds? Apply the ruling only to future tariffs, not refunding past ones? Leave remedy questions to lower courts and Congress? Can the government assert it collected the tariffs in good faith and thus doesn’t need to refund them?
Justice Barrett’s persistent questioning about practical implications—asking how companies would obtain refunds, what happened to businesses that missed protest deadlines, whether administrative chaos would ensue—suggests this is the question keeping the justices up at night.
There’s no established framework for large-scale tariff refunds. The consequences of each choice carry substantial economic and institutional implications. A holding that tariffs are unconstitutional but refunds are limited to named parties in the litigation would leave 99.9 percent of importers without remedy. A holding that full refunds are mandated despite missed protest deadlines would dramatically expand judicial remedial power. Splitting the difference creates a third category of partial refunds that generates its own uncertainty about who has remedies and who doesn’t.
Impact on American Businesses
American businesses are operating under unusual uncertainty about the basic cost structure of their operations. This isn’t normal business risk. It’s uncertainty about whether government action is actually legal.
Small businesses have been hit particularly hard. A February 2025 survey found that 53 percent of small businesses were concerned about tariff impacts. By July 2025, as tariffs remained in effect despite legal challenges, 67 percent reported higher expenses, with 60 percent attributing those increases directly to tariffs. Unlike large corporations with treasury departments and tax planning specialists, small importers often operate with narrow margins and can’t easily absorb cost uncertainty.
The food sector illustrates how tariff impacts compound. Steel and aluminum tariffs raise the cost of canning equipment, cold storage infrastructure, and food processing machinery. Tariffs on specific agricultural commodities from target countries—Chile for fruit, Denmark for cheese, Mexico for avocados—affect both specialty and mainstream food categories. Industry analysts predict that consumer price impacts will emerge only in 2026 as contracts reset, manufacturers finalize pricing, and retailers make permanent price-increase decisions. For lower-income households, which spend a higher percentage of income on food and consumer goods, tariff-driven price increases represent a regressive tax hitting hardest those least able to absorb the cost.
A small manufacturer evaluating whether to invest in new equipment, relocate production, or expand sourcing faces a decision matrix rendered nearly impossible by tariff uncertainty. If tariffs are struck down, the current regime will be replaced by whatever alternative authority the administration invokes. If tariffs are upheld, the current regime persists and may expand.
This has encouraged some businesses to pursue moving production to countries closer to the U.S. or to explore production in lower-tariff countries like Vietnam and Indonesia. But such investments require capital, time, and technical expertise that small businesses often lack. The result is that tariff uncertainty has accelerated supply chain fragmentation and shifted import sourcing, but hasn’t driven the massive onshoring that the Trump administration intended.
How Other Countries Handle This
In peer democracies with comparable economic sophistication, emergency trade authorities are typically constrained by institutional mechanisms that force more rapid judicial resolution.
The European Union’s framework for emergency economic powers includes explicit termination provisions and parliamentary involvement in their continuation. When the EU Council adopts emergency measures, those measures remain subject to continuous judicial review by the Court of Justice of the European Union. The European Parliament scrutinizes emergency declarations, often requesting legal review before measures take full effect. This parliamentary veto point means emergency measures can’t be sustained through executive unilateralism—they require ongoing political consensus.
The United Kingdom’s post-Brexit trade framework gives Parliament the power to control trade policy through the Trade and Cooperation Agreement. The British executive can modify tariff schedules within powers Congress has given to the president, but can’t unilaterally invoke emergency powers to suspend existing trade agreements or impose tariffs without parliamentary authorization. British courts have increasingly policed the boundaries of those powers, and the system forces faster judicial resolution precisely because parliamentary supremacy is the foundational principle.
Australia’s High Court has developed doctrines limiting executive emergency powers even in national security contexts. Australian courts have held that even validly delegated powers can always be limited or changed by new laws, meaning Parliament can always reassert or curtail executive authority. The speed of Australian judicial review of executive action is faster than comparable American cases, in part because the constitutional structure makes clear that judicial review of delegation questions is mandatory, not discretionary.
Across these systems, tighter limits on emergency powers are set before they’re used and courts check whether those powers were used correctly afterward. Parliaments explicitly limit executive emergency powers through detailed language in laws and termination provisions. Courts, knowing that political branches expect them to police these boundaries, move with relative speed to answer questions about the scope of powers Congress has given to the president.
Episodes of sustained ambiguity—where billions of dollars in potentially illegal revenue continues to accumulate while courts deliberate—are rare outside the United States. The U.S. Constitution vests tariff power explicitly in Congress. The emergency powers law, enacted in 1977 to constrain executive emergency authority, includes reporting requirements and termination provisions. Yet the extended silence suggests that neither the limits written into the actual laws Congress passed nor the constitutional text has provided sufficiently clear guidance to enable rapid resolution.
When a Decision Might Come
The next scheduled opinion release date is February 20, 2026. If the tariff decision comes then, it would represent a 107-day deliberation period—slightly longer than typical for cases where justices disagree but within the range for cases involving novel constitutional questions and multiple separate opinions.
If the decision extends to early March, the timeline reaches approximately 120 days, near the upper boundary of normal case deliberation when justices are divided. If it waits until late April or May, the timeline approaches 180-190 days—territory occupied only by the most complex and fractured cases.
There’s also the possibility of ordering additional written arguments or hearing oral arguments a second time. While reargument is uncommon—occurring in only about one percent of cases each term—it becomes more likely when justices recognize that oral argument failed to provide adequate guidance on critical issues. Oral argument on November 5 generated substantial questioning but revealed little consensus about the remedy framework. If the justices believe supplemental briefing on particular issues would substantially aid their deliberations, they could order it, pushing any decision into late spring or early summer.
A third scenario involves a decision where justices agree on the outcome but can’t agree on the reasoning. If five justices agree the tariffs are unlawful but only three of those five agree with the underlying reasoning, the Court could announce who wins without all justices agreeing on why.
Justice Barrett’s persistent questioning about practical implications suggests the remedy question isn’t resolved among the justices. A narrow decision could strike down the tariffs as to specific challengers while leaving broader refund questions to lower courts or Congress. Alternatively, it could declare the tariffs unconstitutional in principle while leaving the remedy timeline and scope to be determined in subsequent proceedings.
The Most Likely Outcome
The most likely scenario, based on oral argument and the extended deliberation timeline, is a decision striking down at least the broader tariffs designed to match what other countries charge on most trading partners. The unified skepticism of six to seven justices, combined with the unusual nature of the claimed authority, points toward invalidation.
The extended deliberation suggests the decision will be carefully crafted and may include multiple separate opinions. The most probable outcome appears to be a decision invalidating the tariffs based on what the law says and the principle that Congress can’t delegate major powers without clarity, with multiple justices writing separately to explain their reasoning and the principles that constrained their votes.
The remedy framework will likely remain complex. Refunds might be ordered for named parties but broader relief left to the Court of International Trade, avoiding massive chaos in processing refunds across the entire system while ensuring at least some importers obtain recovery. Alternatively, the tariffs might be declared unconstitutional and void from the beginning while the lower court is directed to fashion appropriate relief on a case-by-case basis.
Implementation will extend well into 2027 and beyond. The Court of International Trade will process thousands of refund claims, disputes over locked-in entries and protest deadlines, and potential appeals back to the Federal Circuit on remedy questions.
If the ruling goes against the tariffs, the Trump administration will immediately shift to alternative legal authorities. Other laws that let the president impose tariffs for national security or in response to unfair trade practices all remain available and are harder to challenge legally than the emergency powers law. The administration has already launched investigations under these authorities and signaled intent to use them. The net effect may be that tariff protection remains in place on key sectors even as the specific emergency powers tariffs are invalidated.
Congress will face pressure to clarify the boundaries of powers it has given to the president and potentially to legislate an emergency tariff provision with explicit limits. But the polarized political environment suggests Congress is unlikely to move quickly, leaving uncertainty about what tariff authority structure replaces the invalidated emergency powers regime.
The Institutional Cost
The nearly 95-day delay has damaged something harder to measure than tariff revenue: public trust that the justices are fair and neutral and that laws are stable and knowable.
When the constitutionality of a major revenue source remains unresolved for three months despite expedited briefing and oral argument, people lose confidence that laws are stable and fairly applied. Businesses can’t plan capital allocation with confidence. Federal agencies can’t confidently assert that revenue collection authority is valid. International trading partners can’t predict whether agreements made under tariff threat represent binding commitments or temporary impositions subject to constitutional invalidation.
The authority of the justices depends on public and institutional acceptance of their decisions as legitimate interpretations of what the Constitution requires. That acceptance rests partly on the perceived legal correctness of decisions and partly on public trust that they operate as a fair and neutral institution. When expedited review is granted and then expedited timelines aren’t maintained, it sends signals that undermine both forms of legitimacy.
The appearance of internal disagreement, while entirely normal for most decisions, becomes problematic when it stretches across months and appears to delay resolution of a straightforward constitutional question. The appearance that the justices are divided along ideological lines—with the supposedly skeptical six apparently unable to produce a majority opinion—invites the inference that law is secondary to politics in their deliberations.
President Trump has maintained strategic silence since oral arguments. Treasury Secretary Scott Bessent’s stated confidence that the ruling will uphold the tariffs, made without apparent basis in the justices’ oral argument performance, functions partly as public pressure.
A company that paid millions in tariffs in February 2025 still doesn’t know whether it will receive a refund. That company has organized its finances around the assumption that the tariff payment is expenditure, not temporarily held funds. Nearly a year later, uncertainty persists. This is the distinctive uncertainty of constitutional ambiguity, where the authority of government action itself remains unresolved.
Expedited review was granted. The tariff case presents questions that six justices appeared ready to resolve at oral argument. But 95 days have elapsed, and silence persists.
When the decision finally comes—whether in February or later—it will resolve the legal question about presidential tariff authority. But it won’t resolve the institutional question about what happens when the justices promise speed and then fail to deliver it, leaving businesses, agencies, and courts to work through uncertainty about whether government action is actually legal while they deliberate.
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