The resolution of the legal challenge to President Donald Trump’s IEEPA tariffs should have been straightforward: After the executive branch imposes sweeping tariffs without lawful authority, someone sues, and the courts, in light of the enormous political and economic stakes, temporarily prevent the tariffs from taking effect as litigation slogs on. Eventually, the Supreme Court issues a final ruling on the merits and finds that Trump lacks the power to institute the tariffs, as the Court finally did last month in Learning Resources v. Trump.
But thanks to the Court’s earlier decision in Trump v. CASA, which effectively prohibited universal injunctions, federal judges did not enjoin the tariffs. Instead, importers had to pay the tariffs for nine months to the tune of $130 billion, and they may now be entitled to refunds, creating a multibillion-dollar administrative nightmare for the legal system to figure out. The consumers who paid higher prices during this period—which may remain high even without the tariffs due to price stickiness—shouldn’t expect any of that money back.
In his Learning Resources dissent, Justice Brett Kavanaugh lamented that the refund process is likely to be a “mess.” He is right, but the time to prevent this mess was at the injunction phase. In CASA, the Court’s conservatives were all too happy to disregard the real-world consequences of leaving unlawful executive actions in place. The Learning Resources dissent does not grapple with the fact that the Court’s conservative majority created this “mess” in the first place.
In May 2025, shortly after Trump unveiled his tariff regime, the Court of International Trade ruled that the IEEPA tariffs were unlawful and issued a nationwide, permanent injunction halting collections. Courts use injunctions when they determine that the government is probably acting illegally, and that the “balance of hardships” shows that immediate enforcement will cause “irreparable harm.” In cases where the conduct is widespread, courts can issue universal injunctions that apply to everyone, rather than only to the parties involved in litigation.
However, in June 2025, the Supreme Court’s conservatives issued a 6-3 decision in Trump v. CASA curtailing the ability of lower courts to issue universal injunctions. In CASA, this meant allowing the Trump administration to treat the Fourteenth Amendment’s birthright citizenship clause as if it did not exist, contrary to more than a century of precedent. In practice, the decision stripped district courts of a tool for preventing unlawful actions that inflict serious harm during the years-long process of appellate review.
After CASA, the United States Court of Appeals for the Federal Circuit agreed with the CIT that the tariffs were illegal, but it also concluded that CIT lacked authority to issue nationwide relief and remanded the case for consideration of a new remedy. The Federal Circuit lifted the injunction, and the tariffs continued. Money kept flowing into federal coffers, and only now has the Supreme Court agreed that the tariffs exceeded Trump’s authority.
In Kavanaugh’s Learning Resources dissent, the legal formalism of CASA collides with reality. In CASA, the conservative majority elevated abstract structural concerns about separation of powers, forum-shopping, and judicial power over the practical function of injunctions—again, to prevent harm until a court decides a case on the merits. In Learning Resources, faced with the practical consequences of the decision in CASA, Kavanaugh argued that those consequences justified allowing Trump to leave the tariffs in place. What he essentially says is that if the president acts illegally for long enough, courts have no choice but to let it continue.
(Photo by Win McNamee/Getty Images)
For years, when lower courts blocked sweeping federal policies using injunctive relief, conservatives would complain of overreach, so long as a Republican was president. Now, when the absence of that relief allows the implementation of unlawful policies, they pivot to the “reliance interests” those policies create. The longer and more harshly the government acts, the more disruptive it would become to stop it, encouraging increasing lawlessness.
The human consequences of this doctrine are starker in other contexts, where there are no refund mechanisms to unwind unlawful action. Over the last year, ICE has terrorized U.S. cities and deported immigrants to hostile countries without due process, under policies that multiple lower courts have found unconstitutional. Constrained by CASA, district courts cannot issue nationwide relief. If legal challenges to these policies eventually determine that they are indeed unlawful, that result will not be of much use to people whom ICE removed from the country months or years earlier.
Similarly, there is no remedy for the deaths of people like Renee Good, Alex Pretti, and Silverio Villegas González, which might have been prevented by injunctions prohibiting aggressive ICE tactics and deployments. A refund can correct an unlawful tariff, but nothing can bring these people back or make their families whole.
The same dynamic plays out when courts leave restrictive abortion policies in place. When enforcement of legally dubious bans proceeds for months or years, the consequences are not abstract. Pregnant patients with high-risk conditions carry pregnancies they sought to terminate, even when physicians warn of severe complications. Others are compelled into childbirth against their will—a harm that a later judgment cannot undo.
Universal injunctions are controversial because they are powerful. They can halt nationwide policies in a single stroke. But when the federal government acts unlawfully on a nationwide scale, a status quo that limits relief to plaintiffs on a case-by-case basis allows widespread illegality to persist. The tariffs case exposes the real-world consequences of the Court’s choice. Kavanaugh’s complaints about the “mess” caused by lawless executive action sound less like prudence and more like selective amnesia.
