In 1920, while the United States still numbered 48, Congress passed a law to protect American maritime shipping companies from foreign competition. Known as the Jones Act, the law required that any transport of goods between U.S. ports be performed by ships owned, built, and crewed by U.S. citizens. Foreign vessels could carry goods into or out of the United States, but not between ports within the country.
The Jones Act has remained the law of the land for over a century. But on March 17, 2026, the Trump administration waived the Act for sixty days, citing emergency oil market disruptions from the ongoing war with Iran. While Trump’s waiver sought to relieve mainland consumers of a few weeks of high gas prices, the Act has imposed a century of costs on Hawai’i, Alaska, and Puerto Rico.
Because of the Act’s suppression of competition, interstate maritime shipping today is exorbitantly expensive. It costs two to three times more to transport a container from the West Coast to Hawai’i than to ship that same container thousands of additional miles to Asia. These costs are not equally borne. Contiguous states largely substitute maritime transport with rail or truck. Meanwhile, Hawai’i, Alaska, and Puerto Rico—separated from the mainland by oceans or foreign countries—remain captive buyers of Jones-Act fleets. They subsidize the American merchant marine and, as a result, suffer some of the country’s highest food costs and rates of food insecurity.
These former colonial possessions were likely the intended victims of the law. The Jones Act’s stated purpose was to sustain a strong domestic merchant marine for national defense, but as Sam Heavenrich has written, the congressional hearings were “replete with acknowledgements” that the Act would hurt Hawai’i and Alaska—neither of which had yet been granted statehood—as well as Puerto Rico. Legislative history reveals the Act was the outcome of powerful legislators protecting their shipping interests at the expense of three colonized territories denied a vote in the Congress that passed it. At a moment when tariffs have returned to the center of American political debate, revisiting the Act’s history reminds us that some tariffs never left.
This post traces the Jones Act’s colonial origins; describes its ongoing economic harms; and addresses how this law, reviled by both the right wing and the left, has survived for over 100 years. In particular, we explain why constitutional challenges have not only failed to overturn the Act but have rarely acknowledged the obvious, that the Jones Act is a colonial statute.
A Statute Built on Colonial Power
Before the Jones Act was enacted, its chief architect, Senator Wesley L. Jones of Washington, spent two decades manoeuvring to push foreign carriers out of the domestic Pacific shipping market. Washington had a powerful shipbuilding industry, which Jones sought to benefit through captive territorial markets. As early as 1900, he proposed bills to force foreign vessels off Pacific-territory routes, openly acknowledging that the most important effect of his proposed measures would be to restrict trade between Hawai’i and the United States to American vessels. In 1920, with the passage of his eponymous Jones Act, he achieved that goal.
Congress understood the harm it was doing to its colonial territories when it enacted the statute but was unperturbed. For example, Representative Julius Kahn boasted that he had appeared before the Honolulu Chamber of Commerce and told its members directly “that they ought to be willing to build up the American steamship lines … [Hawai’i] ought to be willing to pay something for being under the American flag.” He believed the price of belonging to the States was subsidizing the mainland’s shipping industry. Senator Knute Nelson of Minnesota asked Hawai’i’s Governor, Charles J. McCarthy, directly whether the territory was “penalized by the application of the coastwise laws to Hawaii,” and received an affirmative answer.
Even before the Jones Act, Hawai’i was already suffering from a lack of facilities. After World War I, as Heavenrich has pointed out, there were far too few American vessels to transport passengers to and from the islands—only four steamships, with a combined capacity of 231 berths for a population of 255,000. The situation was so dire that Jonah Kuhīo Kalaniana’ole, the deposed Prince of Hawai’i and the territory’s non-voting congressional delegate, could barely get to Washington to register his dissent to the Jones Act—he had to persuade a captain to find him a place on board. Before Congress, he asked for nothing extraordinary: “Hawaii is not asking this privilege of travel in order to secure lower rates… We ask it only as a matter of necessity, in order to secure the physical possibility of travel and reasonable freedom and facility for going to and coming from the mainland of the United States… we are virtually marooned.” Congress heard him and responded with a waiver so narrow and short-lived, it amounted to nothing.
Alaska’s non-voting delegate George B. Grigsby was similarly disempowered. He confessed to his constituents that he “could not get Alaska excepted from the provisions of the bill because it was Senator Jones’ bill, and Senator Jones was more powerful than I was.” He added that Jones’ interests were in Washington state, and that Jones had no need of Alaskan votes to keep his Senate seat. Puerto Rico’s non-voting Resident Commissioner sat in the same Congress, equally unable to stop what was being done to the island. Without political membership, these delegates could plead their case against the Act, but they lacked the power to prevent its passage.
A Lasting Colonial Tax
In 1959, Hawai’i and Alaska became states. That formal recognition did not end their economic injuries under the Act. They and Puerto Rico, which still lacks a vote in Congress, continue to suffer severe and unevenly distributed economic consequences.
For instance, Hawai’i has the highest cost of living of any U.S. state. In Alaska, where 95% of goods arrive by sea, shipping costs run 60 to 100 percent above global averages. Grocery prices in the state’s major cities average more than 38% higher than the U.S. norm—the second highest in the nation, behind only Hawai’i’s.
In Puerto Rico, which imports more than 80% of its food, the Act functions as an effective tariff of roughly 30% on mainland goods, a burden that falls hardest on an island whose median household income is roughly half the mainland average. Puerto Rico pays twice as much for imports from the U.S. mainland as the neighbouring U.S. Virgin Islands, which is exempted from the Act. Indeed, Puerto Rico often finds it cheaper to import goods from foreign countries than from the mainland.
No moment made the disparate treatment of Puerto Rico more concrete than when Hurricanes Harvey and Irma struck Texas and Florida in 2017. Since 1941, the federal government has had the power to waive the Jones Act under certain circumstances. Administrations, blue and red, have often granted temporary waivers where expedient for the transportation of energy supplies. Consonant with this trend, after the hurricanes, the Trump Administration immediately waived the Act for Texas and Florida. In contrast, it initially refused to waive the Act for Puerto Rico. When a general waiver was finally granted, weeks after Hurricane Maria struck, it was the first time that the island had received a Jones Act waiver of this kind.
The line between who is covered and who is exempt from the Jones Act is revealing. Territories exempt from the Act—American Samoa, the U.S. Virgin Islands, and the Northern Mariana Islands—have trade volumes that pose little threat to mainland shippers. Alaska, Hawai’i and Puerto Rico, on the other hand, account for virtually all the oceangoing Jones Act fleet’s activity. Congress has loosened the law only where it costs its constituents nothing. The Congressional Research Service confirms as much: the fleet now operates almost entirely in markets where shippers have no alternative.
Anticolonial Antimonopoly through the Constitution: A Quixotic Project
When the Jones Act passed in 1920, just 2839 merchant ships sailed under the U.S. flag. Today the situation is even worse: only 99 Jones-Act-eligible vessels remain—a 96% collapse—serviced by just four shipyards capable of constructing large oceangoing vessels. The fleet the Act was meant to build, justified at the time in the name of national defense and a robust merchant marine, has been replaced by a tiny monopoly that achieves neither end. Meanwhile, the three jurisdictions that all lacked a vote when Congress imposed the Act continue to bear the Act’s full economic weight.
What is to be done? Should Hawai’i, Alaska, and Puerto Rico seek to constitutionally invalidate the Act, as some urge? Should they seek congressional repeal? Or must they demand something more, like political independence? We cannot answer that question here. What political horizon is adequate to remedy a century of colonial extraction is a question that belongs, above all, to the peoples of Hawai’i, Alaska, and Puerto Rico. But in what remains, we outline the limits of an anticolonial, antimonopoly project pursued through the Constitution.
As a doctrinal matter, constitutional challenges to the Act are unlikely to succeed. Earlier this year in Kōloa Rum Company v. Noem, the Jones Act survived on a motion to dismiss under the Fifth Amendment and Port Preference Clause, a little-known constitutional provision prohibiting congressional preference for one state’s ports over another’s. There, a Hawai’i-based rum company, represented by the conservative Pacific Legal Foundation, availed itself of every doctrinal tool the Constitution has to offer. It pressed the Port Preference Clause’s text and history, and it argued that Hawai’i was politically disenfranchised when the Act was passed. It alleged that economic liberty is a fundamental right. It even claimed that the Act failed rational basis review because it undermined its own stated goals. Yet none of these efforts succeeded: among other failures, the plaintiff could not establish that the statute directly discriminated against Hawaiian ports as required by precedent or that Hawai’i’s past territorial status merited heightened scrutiny.
This aborted challenge points to a deeper conceptual failure of the Constitution itself. The word “colonial” never once appeared in the plaintiff’s complaint or an amicus brief from Alaskan business associations. Indeed, it would not have been legible to the court if it had. As Maggie Blackhawk argues, constitutional scholars and jurists, let alone judges, “lack the very language to confront [American colonialism] in a constitutional register.” Colonial subjects, after all, never enjoyed a Reconstruction. The Constitution was neither drafted nor amended to redress dispossession at the hands of empire. Rather, the Constitution was written against a presumption of formal equality and consent to the American project that never rang true for colonial acquisitions.
Worse still, litigation against the Act today is most likely to be brought by actors more interested in liberating markets than liberating people. In Koloa Rum, the complaint’s first lines tell us that Bob Gunter, Koloa Rum’s CEO, was born in South Carolina and “came to Hawai’i while serving in the military.” The plaintiff was neither a native Hawai’ian nor a precarious consumer, but a settler’s business venture, seeking to improve commercial conditions by removing a heavy tax on its operations. No wonder then that its challenge did not, could not, state the obvious out loud. Even supposing the plaintiff enjoyed access to a constitutional language of colonialism, it would not have availed itself of that resource. When the right-wing is driving antimonopoly litigation against a colonial statute, colonial justice will never be on the agenda.
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The Trump administration’s Jones Act waiver was framed as a national security necessity. But national security has always been an alibi. Waived overnight in response to a crisis for capital but maintained in the face of protest from former and current territories, the Jones Act has a logic impossible to ignore. The law has consistently been suspended most readily when it became inconvenient for those it was designed to protect. Meanwhile, the three jurisdictions it was intended to exploit are still waiting for long-term relief.
While constitutional litigation might one day bring about the Jones Act’s demise, so long as plaintiffs are business interests seeking to liberalize capital growth, an anticolonial, antimonopoly project will remain remote. Whether that project requires new constitutional theory, congressional politics, or something not yet articulable from within the existing legal order is still an open question. Until then, the peoples of Hawai’i, Alaska, and Puerto Rico will keep paying the price.
