Is the Jones Act Unconstitutional?

An argument that the wasteful law violates the Constitution's Port Preference Clause.

by Jonathan H Adler, Volokh, April 24, 2023

The Jones Act requires that cargo shipped between U.S. ports must be carried on vessels that are built, owned, crewed, and flagged in the U.S. These requirements are inefficient and lead to higher costs for domestic industry and consumers and contribute to supply-chain disruptions.

The Jones Act is not only terrible policy. It may also be unconstitutional, or so Sam Heavenrich argues in the Wall Street Journal. He writes:

The Merchant Marine Act of 1920 is special-interest politics at its worst—a destructive law that Congress can't seem to repeal. The protectionist statute, commonly known as the Jones Act, prohibits foreign vessels from transporting goods between U.S. ports. As a consequence, domestic waterborne transportation is restricted to U.S. vessels, which are more expensive to operate and tend to be considerably older and less safe than their foreign counterparts. Studies estimate that the Jones Act costs the U.S. economy more than a billion dollars annually, with noncontiguous areas such as Alaska, Hawaii and Puerto Rico bearing the brunt of its effects. Despite the cost of the law, powerful shipping and shipbuilding interests have successfully lobbied to keep it afloat.

But there may be a solution in one of the most neglected provisions of the Constitution: the Port Preference Clause.

That clause, in Article I, Section 9, prohibits Congress from giving preference "by any regulation of commerce or revenue to the ports of one state over those of another." And that's exactly what the Jones Act does. Contiguous states with major ports thrive, while states with ports more remote from the mainland suffer.

This clause is not invoked all that often, and there are not too many precedents construing its scope. Nonetheless, Heavenrich argues, an originalist interpretation of the clause would cut against the Jones Act's constitutionality, as the law has the purpose and effect of advantaging some ports over others.

He concludes:

In purpose and effect, the Jones Act has carved out a market for the domestic shipping industry at the expense of citizens living in the noncontiguous U.S. But the Jones Act is more vulnerable than it appears. A constitutional challenge to the Jones Act could bring relief to those on America's geographic peripheries who, like the Port Preference Clause, have been ignored for too long.

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