On May 20, 2026, the U.S. Court of International Trade (CIT) denied the Government’s request to pause the CIT’s May 7 ruling during the appeals process. For now, Section 122 duties remain unlawful, and U.S. Customs & Border Protection (CBP) cannot collect Section 122 duties from plaintiffs Burlap & Barrel, Basic Fun, and the State of Washington.
In doing so, the CIT assessed the four factors to determine whether a stay was appropriate: (1) whether the stay applicant has made a strong showing that it is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.
The CIT concluded that the limited nature of the injunction combined with the Government’s speculative claims did not warrant a stay of the ruling or permanent injunction for the three plaintiffs. In practical terms, the CIT’s opinion signaled its willingness to administer additional challenges, explaining that if it was faced with additional cases, it would determine whether specific case management procedures or other forms of relief are required at that time.
Previously, the Government indicated that it would make an emergency appeal to the U.S. Supreme Court if the CIT denied its motion for a stay. As a result, affected importers should be aware that a stay may nevertheless be granted.
Below are additional details regarding the CIT’s order and its rationale for denying the Government’s motion.
Irreparable Harm to the Government
The Government claimed that absent a stay, the President and CBP would face irreparable harm to the ability to carry out their respective duties. The CIT was not persuaded. It found that the Government’s claim of “intrusion on the President’s conduct of foreign affairs” failed to acknowledge that the judgment applied only to three plaintiffs, and that the power to levy taxes and tariffs sat with Congress. The CIT also found that the claimed injuries to CBP were purely speculative because of CBP’s authority to extend liquidation past the 150-day clock for collecting Section 122 duties.
Injury To Importer Plaintiffs
Conversely, the CIT found that there was a likelihood of substantial injury to the Importer Plaintiffs. It reasoned that it was difficult to see how continuing to pay unlawful Section 122 duties to the Government only to wait months, if not years, for any refund would not qualify as substantial injury, especially given that Importer Plaintiffs would also face lost profits and damage to business relationships among other consequences.
Public Interest
The Government contended that there was a strong public interest in the President’s ability to address “threats to the United States’ economy, military preparedness, and national security” and to implement administration policies. The CIT was unconvinced, finding that such concerns were not implicated and that the limited nature of the injunction does not restrain the President’s policymaking. Additionally, the CIT again referenced Congress’ authority to impose tariffs, and concluded that it was up to Congress and not the President to decide whether the public interest merits further action in response to well-intended but unlawful executive action.
Likelihood to Succeed on the Merits
The Government addressed this factor last and contended that “legislative history is not law” and thus the CIT’s reliance on legislative history is misplaced. The CIT dismissed the Government’s claim, reasoning that here was not a situation where ambiguous legislative history muddied clear statutory language. Instead, Section 122 did not expressly define “balance-of-payment deficits.” Thus, the CIT denied the Government’s motion.
The Husch Blackwell International Trade and Supply Chain team will continue to monitor and provide updates on this case as they become available. If you have company specific questions or concerns, please contact your Husch Blackwell attorney.