Op-Ed: When the government loses in court, but keeps charging anyway

At ports across the United States, something unusual is happening. Thousands of American businesses are now waiting for refunds on tariffs the courts have already ruled unlawful. At the same time, many of those same companies are being asked to pay a new round of tariffs – based on a different legal theory.For importers, the question is simple: how many times can the government impose the same tariffs under a new name?Earlier this year, the U.S. Court of International Trade ruled in V.O.S. Selections, Inc. v. Trump that the president lacked authority to impose sweeping tariffs under a federal emergency law. The Constitution gives Congress – not the president – the power to impose tariffs, and the court concluded that authority had been exceeded.Now, before many businesses have received a single dollar in refunds, the administration has announced a new tariff regime under a different statute.The result is confusion, cost and a growing sense of déjà vu.Our clients include Burlap & Barrel, which imports spices from small farms around the world, and Basic Fun!, an American toy company whose products fill store shelves across the country. These are not foreign corporations. They employ American workers, operate warehouses, and supply retailers that serve millions of American families.And like thousands of other businesses, they are now caught in the middle. Yet they now face sudden tariffs that Congress never authorized.For importers, tariffs are not theoretical. When a shipment arrives at an American port, the bill comes first. Before the goods even leave the dock, the importer must pay the tariff – sometimes thousands or even hundreds of thousands of dollars up front.Imagine paying a tax the courts have already said was unlawful – only to be told to pay it again under a different label. That’s the reality many businesses face today.While they wait for refunds from the first round of tariffs, they must decide whether to absorb new costs, raise prices, delay shipments or pause hiring. Contracts are renegotiated. Inventory decisions are put on hold. Investment gets deferred. That uncertainty doesn’t stay contained at the port. It ripples outward – to retailers, to workers and ultimately to consumers.The law now being used to justify these new tariffs was designed for a very different moment in history. In the early 1970s, policy makers worried about a specific financial crisis involving the value of the dollar in global markets, Congress allowed the president to impose temporary import surcharges for a limited time while that crisis was addressed.It was never meant to be a general-purpose tool for reshaping trade policy.Yet today, it is being used that way – after another legal pathway has already been rejected by the courts.That raises a bigger issue than tariffs alone.Tariffs are taxes. And in our constitutional system, the power to tax belongs to Congress. This isn’t about whether tariffs are good policy or bad policy. Reasonable people can disagree. The question is who gets to decide. If new tariffs are necessary, Congress has the authority to debate and assess them. That process is often slow and difficult – but it’s designed that way to ensure accountability.What the Constitution does not permit is a system where tariffs can be imposed, struck down and then reimposed under a different statute without clear authorization. For businesses trying to plan, invest and grow, that kind of uncertainty is more than frustrating. It’s destabilizing.For consumers, it means higher prices and fewer choices. And for the country, it raises a fundamental question about the limits of executive power. Right now, American businesses are still waiting at the dock – waiting for refunds they are owed, while being asked to pay again.They deserve clarity. They deserve consistency. And they deserve a government that follows the law the first time.