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104 Wash. Univ. L. Rev. Online 1 (2026)

handle is hein.journals/wshuvylw104 and id is 1 raw text is: SHADOW TARIFFS AND THE EXECUTIVE VOLATILITY REGIME DORON NAROTZKI* ABSTRACT This Article identifies and theorizes a neglected element of tariffs: shadow tariffs, the tariff-like burdens created by executive volatility rather than by durable border collection. When an administration repeatedly announces, delays, conditions, escalates, and reverses tariffs, it changes the expected distribution of future trade costs. Corporations respond ex ante by repricing risk, rewriting contracts, pulling forward inventory, reconfiguring supply chains, investing in compliance and origin planning, and delaying hard-to-reverse investments. Those defensive adjustments impose real costs, even when threatened tariffs are never implemented or are withdrawn before meaningful revenue is collected. The Article uses President Trump's second term as a case study because it combines unusuallyfrequent threats with aggressive testing ofstatutory and constitutional boundaries. It makes three contributions. First, it distinguishes shadow tariffs from ordinary incidence analysis and explains why policy reversal does not undo the harm. Second, it maps the private- law and operational channels through which volatility collects burdens. Third, it proposes a measurement strategy based on threat windows and observable proxies, and it shows how the Constitution's separation-of- powers design is economic policy in this setting. * Associate Professor of Tax and Business Law and Director of the MTax Program, Steininger Faculty Fellow at the University ofAkron, College of Business, Daverio School of Accountancy. 1