Is Jones Act unconstitutional as it applies to Hawaii, Alaska?

by Keli’i Akina, President and CEO of the Grassroot Institute of Hawaii.

There’s a new legal theory against the Jones Act on the block, and I’m hoping that it has some legs.

My colleagues and I at the Grassroot Institute of Hawaii have been advocating for years that federal lawmakers reform the maritime law known as the Jones Act, which you might recall requires that all goods shipped between U.S. ports be U.S. flagged and built, and be mostly owned and crewed by Americans. 

These regulations have resulted in higher prices for consumers nationwide, but especially in places such as Hawaii and Alaska, because they limit competition and force Jones Act carriers to use capital and labor that are among the most expensive in the world. 

Most of our work at Grassroot has been focused on research showing how the 1920 law harms our livelihoods and increases our cost of living, such as our landmark 2020 report, “Quantifying the cost of the Jones Act to Hawaii,” which estimated that the law costs Hawaii residents and businesses about $1.2 billion per year, or about $1,800 a year for the average Hawaii family of four. 

There also have been attempts to repeal or reform the law through the courts, but for reasons usually unrelated to the merits of the challenges, none of them have been successful. 

However, a new legal theory has come to the fore, proposed by Joshua Thompson of the Sacramento, California-based Pacific Legal Foundation that could make a difference.

Writing this past Monday in Honolulu Civil Beat, Thompson explained that the Jones Act might violate Article I, Section 9 of the U.S. Constitution, otherwise known as the Port Preference Clause. 

Simply put, this clause forbids laws that would favor one state’s ports over another’s, and Thompson is arguing that the Jones Act favors mainland ports over Hawaii ports.

Thompson wrote that “maybe that protectionist purpose was constitutional in 1920 when the object of the discrimination was only American ‘territories.’ But once Alaska and Hawaii became states in 1959, it became harder to justify.”

Thompson concluded: “Given that the effects of the Jones Act are felt acutely by residents and businesses in those states, the constitutionality of this century-old legislation is seriously suspect.

“If the Port Preference Clause means anything, it means Congress cannot pass laws that have the purpose and effect of putting Alaskan and Hawaii ports at a disadvantage. People in Alaska and Hawaii deserve better than to be shackled by this relic of a bygone era, and the Constitution mandates it. Where there’s a willing plaintiff, there’s a way to do it.”

No matter how this new theory shakes out, I can promise that the Grassroot Institute of Hawaii will continue its efforts to update the Jones Act for the 21st century. 

Hawaii’s future depends on it.