The Port Preference Clause solves, repeals the Jones Act

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. The Congressional Research Service found in 2019 that the domestic Jones Act fleet is “almost entirely engaged” in serving Alaska, Hawaii and Puerto Rico, “where shippers have little alternative.”

Courts have cited the Port Preference Clause in only a handful of cases. In Pennsylvania v. Wheeling & Belmont Bridge Co. (1855), the Supreme Court rejected Pennsylvania’s complaint that the bridge over the Ohio River violated the Port Preference Clause by impeding steamboats, with their tall smokestacks, from passing underneath to reach the port of Pittsburgh.

The justices held that the disadvantage to Pennsylvania was only incidental. And if incidental disadvantages were enough to trigger the clause, Congress would be unable to allocate money for the “improvement of rivers and harbors, the erection of lighthouses, and other facilities of commerce,” which was bound to affect states unequally. But the court left open the possibility that laws enacted with the intent to discriminate against a state’s ports can violate the Port Preference Clause.

A case arguing that the Jones Act violates the Port Preference Clause would hew to Founding-era understandings of the Constitution—an important consideration for an increasingly originalist Supreme Court. Smaller states’ fears of domination by larger states figured prominently at the 1787 Constitutional Convention. It’s why we have a Senate in which states are represented equally. It’s also why the Port Preference Clause made it into the Constitution in 1787.

The Founders’ concerns about large-state domination are particularly relevant to the Jones Act. The most affected states’ lack of congressional clout makes a legislative fix unlikely. And the history and context of the Jones Act’s passage is replete with evidence that Congress intended to target Alaska and Hawaii. Sen. Wesley Jones (R., Wash.), the law’s namesake, sought for decades to restrict trade in territories outside the contiguous U.S. to benefit his home state’s shipping industry. But that stopped being constitutional, if it ever was, when Alaska and Hawaii were admitted as states.

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.