March 4, 2026

Art and Collectibles Markets Aided by Supreme Court Decision that Annuls Trump Administration Tariffs

Nicholas O'Donnell Sullivan & Worcester + Follow Contact LinkedIn Facebook X Send Embed The Supreme Court of the United States has invalidated the sweeping reciprocal tariff regime enacted by the Trump Administration last year, purportedly pursuant to the International Emergency Economic Powers Act (50 U.S.C. §§ 1701, et seq.) (IEEPA). In its opinion issued on February 20, 2026 in Learning Resources, Inc. v. Trump, 145 S.Ct. 2811 (2026) authored by the Chief Justice, the Court held that IEEPA’s delegation to the President to restrict imports does not extend to the capricious array of tariffs that the Administration imposed, raised, and lowered as it saw fit.

The decision is an important one for the art and collectibles markets, which had been battered by uncertainty from the IEEPA tariffs that excluded only “informational materials” but not all visual and decorative art. The broad traditional exemptions in Chapter 97 of the Harmonized Tariff Schedule (HTS) over nearly all art and cultural property now return to force, consistent with longstanding principles of free expression and exchange.

The Administration has since moved to try to reimpose broad worldwide tariffs. This assertion under Section 122 of the Trade Act of 1974 (Section 122) also fails the stated justification arising out of the international payment system, however. The Administration’s reading of Section 122 is wrong because that law is not about trade deficits, it is about financial and currency instability. No less an authority than this Administration has argued just that in trying to defend the IEEPA tariffs. Accordingly, these tariffs can and should be challenged.

These new tariffs as levied do also contain the “informational material” exception that the IEEPA tariffs did, which should exempt “artworks” (but not all cultural property). In either event, by statute they cannot exceed 15% anywhere and will expire automatically in 150 days. So, while the reimposition of these trade impediments is unwelcome and potentially leaves the same interpretive problem of what is an “artwork,” they are lower, more predictable than the roller-coaster of the past year, and temporary. Art businesses who paid IEEPA tariffs can and should apply for refunds.

I wrote in The Art Law Report when the first IEEPA-based tariffs were floated a year ago that the tax exceeded legal authority. The Court’s decision invalidating those tariffs was the right outcome. As with any fee illegally assessed by the government, art businesses (and any other businesses) who paid IEEPA tariffs can and should apply for refunds.

As every American learns in primary school, the imposition of the “Intolerable Acts” tariffs at the whim of the government was among the catalysts leading to the United States of America declaring its independence 250 years ago. The Administration has every right to seek to implement the policy on which it ran and was elected, and the business of legislation is a messy one, but it is the only way. Perhaps this decision will shake the dust off a quiescent Congress to engage and make compromises towards better policy.

The IEEPA Tariffs

Between March and April of 2025, the Trump Administration issued several declarations claiming an emergency related to fentanyl imports and trade imbalances as justification to levy worldwide tariffs under IEEPA. See Executive Order 14257 of April 2, 2025 (“Regulating Imports With a Reciprocal Tariff To Rectify Trade Practices That Contribute to Large and Persistent Annual United States Goods Trade Deficits”). IEEPA authorizes the President broadly to restrict, among other things, the importation of “any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States.” 50 U.S.C. § 1702(a)(1)(B). That power is expressly limited, however, and does not extend to “the importation from any country, or the exportation to any country, whether commercial or otherwise, regardless of format or medium of transmission, of any information or informational materials, including but not limited to, publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, compact disks, CD ROMs, artworks, and news wire feeds.” 50 U.S.C. § 1702(b)(3).

After considerable initial confusion, Customs and Border Protection issued a Frequently Asked Questions memorandum that restated the “informational materials” standard recited in IEEPA itself without further clarification In practice, the market treated painting, prints, and sculptures as “artworks” exempt from the IEEPA duties, but not other traditionally-exempt Chapter 97 cultural property objects like antiquities, furniture, coins, decorative arts, stamps, archaeological and ethnographic materials.

Regulating Imports is not the Same as Imposing Tariffs

A collection of businesses affected by the tariffs brought suit to challenge them. Both the Court of International Trade and the Court of Appeals for the Federal Circuit agreed with the challengers, but each stayed their ruling and permitted collection of the tariffs to continue while the case worked its way up to the Supreme Court.

The Chief Justice rejected the Administration’s justification for the tariffs as “a transformative expansion of the President’s authority over tariff policy.” As the Chief Justice reminded: “[t]he Framers gave ‘Congress alone’ the power to impose tariffs.”

The Court was unpersuaded by the Administration’s argument that IEEPA’s delegation of the power to regulate imports justified the tariffs. “The term ‘regulate,’ as ordinarily used, means to ‘fix, establish, or control; to adjust by rule, method, or established mode; to direct by rule or restriction; to subject to governing principles or laws.’” As the opinion later noted, “no President has invoked the statute to impose any tariffs” under IEEPA. Nor could the Administration fall back on taxing authority, because neither the President nor Congress can tax imports under Article I, § 9 of the Constitution.

It is not a stretch to note that the majority was aware of the often arbitrary trajectory of the tariffs last year. If they were illegal, how high they were would not actually matter to the outcome. Yet in an otherwise concise opinion, the Chief Justice recounted example after example of abrupt and sharp fluctuations, on the same countries. While dicta, this recitation is notable. And while it did not make its way into the opinion, a quote making the rounds underscored just how arbitrary this all was. President Trump told Fox News that in his discussions with Switzerland, for example, “[s]o [the tariffs were] at 30 percent, and I didn’t really like the way she talked to us, and so instead of giving her a reduction, I raised it to 39 percent.”

The memorable rhetorical flourish of the case went to Justice Gorsuch, who building on the Court’s rejection of the Biden Administration’s attempt to cancel student loans without Congressional involvement, observed in his concurring opinion:

[M]ost major decisions affecting the rights and responsibilities of the American people (including the duty to pay taxes and tariffs) are funneled through the legislative process for a reason. Yes, legislating can be hard and take time. And, yes, it can be tempting to bypass Congress when some pressing problem arises. But the deliberative nature of the legislative process was the whole point of its design. Through that process, the Nation can tap the combined wisdom of the people’s elected representatives, not just that of one faction or man. There, deliberation tempers impulse, and compromise hammers disagreements into workable solutions. And because laws must earn such broad support to survive the legislative process, they tend to endure, allowing ordinary people to plan their lives in ways they cannot when the rules shift from day to day. In all, the legislative process helps ensure each of us has a stake in the laws that govern us and in the Nation’s future. For some today, the weight of those virtues is apparent. For others, it may not seem so obvious. But if history is any guide, the tables will turn and the day will come when those disappointed by today’s result will appreciate the legislative process for the bulwark of liberty it is.

He went on: “[a]re we really to believe that the patriots that night in Boston Harbor considered the whole of the tariff power some kingly prerogative?” Any of us who grew up walking the Freedom Trail in Boston know the answer to that question is “no.”

The majority, concurring, and dissenting opinions also addresses a topic for another day, namely, the extent to which the so-called “major questions” doctrine confines Executive action without Congressional approval. This is an important balance-of-powers question on which the six Justices in the majority do not completely agree and on which there was some sharp crossfire in the various opinions. In the end, however, they did agree that this assertion of Executive authority was too much.

Refunds

The ruling is silent on the retrospective effect of the opinion. If from nothing else besides Justice Kavanaugh’s dissenting opinion bemoaning the coming logistical headache of such refunds though, it is clear that the illegally imposed tariffs can be refunded. After oral argument, the first wave of lawsuits seeking refunds was filed. Those cases will now return to the active docket and many new claims have been filed since the Court’s ruling. Importantly, the Administration itself assured the lower courts that refunds would not be an issue in arguing against a stay last year, an argument that prevailed. Under standard principles of collateral estoppel, the Administration is bound by that assertion and must refund the tariffs.

The Section 122 Tariff Effort

Almost as soon as the Court issued its opinion, the Administration was ready with its reaction. On February 20, 2026, the White issued a “Fact Sheet: President Donald J. Trump Imposes a Temporary Import Duty to Address Fundamental International Payment Problems.” The President invoked Section 122’s authority to “address certain fundamental international payment problems through surcharges and other special import restrictions.” Ostensibly to address the balance of payments imbalance that Section 122 addresses, the President imposed a 10% (later raised to 15%) ad valorem import duty on articles imported into the United States for 150 days. This is the maximum extent allowed by Section 122.

Section 122 directs the President to impose tariffs if “fundamental international payments problems require” them. The Administration reads that language to mean trade imbalances, i.e., that more goods are imported to the United States from Country X than are imported to Country X from the United States. But that is not what the statute means, it refers to financial imbalances arising principally out of “imminent and significant depreciation of the dollar.” That has nothing to do with a trade deficit any more than “regulate” under IEEPA meant “tariff” (it did not).

If that were not enough, the Administration itself has previously said so explicitly: “The concerns the President identified in declaring an emergency arise from trade deficits, which are conceptually distinct from balance-of-payments deficits.” V.O.S. Selections, Inc. v. Trump, Nos. 2025-1812, -1813, (Fed. Cir.), Reply Brief for Appellants, ECF No. 147, July 18, 2025.

Notably, the accompanying Proclamation issued by the White House lists a number of exemptions from the Section 122 tariffs. At paragraph 14(j), the Administration is not assessing the import duty on “information materials, donations, and accompanied baggage.” This is presumably a transcription error intended to be synonymous; “information materials” is not a separate term of art.

Thus, even if the Section 122 tariffs are collected and/or upheld, art and sculpture will remain exempt from tariffs, while other traditional Chapter 97 materials would be subject to the new 15% rate. That is higher that some of the IEEPA tariffs, lower than others, but it can never go higher than that, and it will be gone in 150 days.

Conclusion

The tariff case decision is an example of traditional interpretation consistent with the structural limits of the Constitution. Any tariffs paid under this voided regime can and should be refunded. The new Section 122 tariffs should also be struck down, but in any event are lower, time-limited, and far more predictable. The art market can take solace in this stability.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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