Does the Federal Circuit uphold the Section 122 tariffs?
Will the Federal Circuit reverse the CIT and hold the Section 122 surcharge lawful?
Same split as before, unchanged absent any new filing or ruling. Firms who read the June 11 stay closely (Steptoe) still note the panel found the government 'likely to succeed on the merits' in granting it. A fresh read of Gibson Dunn's analysis finds real vulnerabilities in the CIT majority's reasoning — the dissent's point that Congress 'deliberately did not impose a narrow definition' of balance-of-payments deficits, after removing a more specific one from earlier drafts — that may not survive appellate review. Neutral firms (Skadden, Nakachi Eckhardt & Jacobson) still call the ultimate outcome genuinely open, describing the stay as procedural rather than predictive of the merits. There remains no prediction market on this — consensus is entirely lawyer-derived, which is exactly why it's mispriceable.
No fixed date · Federal Circuit ruling on the merits — timing unknown
Fourth consecutive quiet week on the merits panel: still no oral-argument date set and no ruling as of August 6. A fresh check of the docket and trade-bar commentary today confirms nothing has moved since the appeal was docketed May 8 and the stay granted June 11 (Nos. 2026-1804, 2026-1805) — the Federal Circuit's public calendar shows no scheduled argument in this case. The underlying surcharge remains moot prospectively — it sunset July 24, 2026, and USTR's Section 301 replacement duties (10-12.5% on roughly 60 economies) have been running in its place since. What's still live is the appeal itself and roughly five months of collected duties, with CBP continuing to collect from everyone but the three named plaintiffs while the panel weighs the 'balance-of-payments deficit' interpretation and nondelegation arguments.
An appellate panel either affirms or reverses the trial court. The date is unknown — appellate timing is not scheduled in advance.
Researched Aug 6, 2026 · tracked since Jul 28, 2026 · 6 readings
Jul 28, 202660%→Jul 31, 202665%→Aug 3, 202665%→Aug 4, 202665%→Aug 5, 202665%→Aug 6, 202665%
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Tariffs upheld on appeal
The Federal Circuit reverses the CIT. No broad refunds — the roughly five months of collected duties stay collected, and the balance-of-payments authority survives as a template for future use even though Section 301 has already taken over the forward-looking tariff.
Worth knowing: Because Section 301 duties already replaced Section 122 going forward, an affirmance mainly resolves the refund liability and the precedent — it does not change forward import costs, which was the bigger story when this topic started.
CIT affirmed, tariffs struck
The panel affirms. The Feb 24-Jul 24 collection window opens up as a refund pool for everyone who paid, not just the three named plaintiffs, and the administration's remaining tariff authority narrows further after already losing IEEPA.
Worth knowing: Relief at the CIT was limited to three named plaintiffs. An affirmance does not automatically refund everyone else — extending it economy-wide is a second, slower fight, likely in the CIT itself or via a class mechanism.
5 sources, leaning both ways
- yesSteptoe — Appellate court raises more uncertaintyReads the stay as favorable to the government.
- mixedGibson Dunn — Section 122 Global Tariffs Invalidated by the CIT: Ruling and Next StepsFinds the dissent's reasoning 'thorough' and the majority's narrow reading potentially vulnerable on appeal.
- mixedSkadden — Ruling's fate uncertain, practical impact limitedThe cautious read — outcome genuinely open.
- mixedNakachi Eckhardt & Jacobson — Federal Circuit Appeal Tests Section 122 'Balance-of-Payments' Tariff AuthorityConfirms the appeal was docketed May 8 and stayed June 11, with no oral-argument date yet set — the freshest procedural confirmation available.
- noBDO — US Court of International Trade Invalidates Section 122 TariffsTakes the CIT's original reasoning at face value and flags this could ultimately reach the Supreme Court.