Serious Trouble But Are the Wings Wild?
Feb 26, 2026
They dig into high-stakes tariff refund lawsuits and whether payers like FedEx can get money back after a Supreme Court decision. They wrestle with alternative legal authorities the government might use to reimpose tariffs. They cover dropped plans to prosecute creators of a controversial refusal-of-orders video. They unpack a contempt ruling against a prosecutor and a disputed search of a reporter’s devices.
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Government Can Flip Positions But Courts Won't Forget
- The federal government can change litigation positions even after promising refunds, but judges will view reversals skeptically.
- Ken White explains judicial estoppel doesn't bind the government, yet prior refund assurances will persuade courts assessing stays and relief.
Money Rulings Tend To Be Retroactive For Tariff Payers
- Tariff payers like FedEx likely can recover money paid under invalid tariffs because money-related rulings are often applied retroactively.
- Josh Barro notes liquidation mechanics matter: liquidated payments, pending estimates, and statute of limitations shape refund claims.
Alternate Tariff Laws Come With Tight Limits
- The administration is trying alternate statutory authorities for tariffs, like Section 122 of the Trade Act, but those carry limits and triggers.
- Ken White warns Section 122 allows up to 15% for 150 days and requires a balance of payments finding that may be contestable.