LOCAL INAPPLICABILITY OF THE FEDERAL DEATH PENALTY ACT OF 1994 IN PUERTO RICO AN

Rivera Blas, Christopher 3/26/2015
For Educational Use Only
LOCAL INAPPLICABILITY OF THE FEDERAL DEATH..., 54 Rev. Der P.R. 215
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
54 Rev. Der P.R. 215
Revista de Derecho Puertorriqueno
2014
Sumario
Artículo
LOCAL INAPPLICABILITY OF THE FEDERAL DEATH PENALTY ACT OF
1994 IN PUERTO RICO AND THE ADOPTION OF THE CÓRDOVA TEST
Christopher T. Rivera Blas a1
Copyright (c) 2014 de la Revista de Derecho Puertorriqueño; Christopher T. Rivera Blas
I. Introduction
The Federal Death Penalty Act 1
passed by Congress in 1994, was established in order to provide a uniformed procedure to apply
capital punishment in prosecutions under the federal felonies specifically included in the congressional statute. Nonetheless,
with its approval the citizens of the United States residing in Puerto Rico could be exposed to the death penalty on the Island
under this federal statute. Although the Commonwealth of Puerto Rico abolished the death penalty in 1929, and has ultimately
maintained its non-existence within its boundaries. This is precisely stated in the Constitution of Puerto Rico and I quote, “death
penalty shall not exist” . 2
The problem presented in this article is whether if under section 9 of the Puerto Rican Federal
Relations Act of 1950, 3
hereafter referred to as PRFRA, the Federal Death Penalty Act, henceforward referred to as FDPA,
should be held “locally inapplicable” in Puerto Rico.
Now, in order to understand the full scope of the controversy I should remark upon the PRFRA. 4
This act was established to
provide *216 the people of Puerto Rico a basis in order to create and maintain their government and constitution. Furthermore,
the U.S. Congress approved the Constitution of the Commonwealth of Puerto Rico, and later ratified it through a referendum
by the people of Puerto Rico, thereby creating an expectation that its provisions would be respected and upheld. 5
Now, given
the nature of the compact with the United States in which the Puerto Rican Constitution is created upon, neither party can
unilaterally alter the agreements stipulated, without the express consent of the other.
The FDPA was not expressly extended by Congress to be applied in Puerto Rico, nor has there been any referendum,
or procedure alike, to receive consensus from the people of Puerto Rico. This, ultimately, would mean that Congress has
deliberately infringed its compact with Puerto Rico by applying the FDPA to Puerto Rico without the consent of its people, as
an act of unilateral alterations to the Puerto Rican Commonwealth Constitution.
On the other hand, I must also address, that the vast legislative power afforded to Congress under the federal system, is based
on the fact that all states, which have consented to be governed under the U.S. Government and its Constitution, its Laws
and Treaties, have a right to be represented in Congress. They also possess voting privileges for elected officials, such as the
President of the United States. Nonetheless, Puerto Rico posses a unique legal and political status, sometimes referred to as sui
generis, that leaves the Island in a complicated predicament, where it is treated as a State, but, it is not a State of the Union,
therefore, has no voting rights privileges. This lack of representation in Congress confirms our prior argument on the need for
consensus from the people in Puerto Rico, in order to apply federal statutes in Puerto Rico, or in the alternative, Congress must

precisely express their needs and interest for its application. None of which are present under the FDPA. The lack of consent
from the Puerto Ricans in the application of the FDPA must be viewed as a crass violation of the substantive due process of
the Puerto Ricans. Furthermore, it affronts the very fundamental principals of democracy and consensus that both governments
were founded upon. The presumption that must be established under such circumstances must be that, when Congress fails to
include explicitly the application of federal laws to Puerto Rico, it should be assumed it did so, knowingly and understanding the
need of consent of the Puerto *217 Rican people in order to effectively apply congressional statutes to the Island. Democracy
would not have it any other way.
I contend that the applicability of federal statutes cannot be based solely on congressional intention, more so when intent is
uncertain and unclear. The inconsistency shown by courts in the application of congressional statutes to Puerto Rico has led to
an ambiguity as to when the application is justified and, furthermore, what aspects should be considered when confronting such
controversies. In this article we propose the establishment of the Córdova Test, 6
in order to determine the local applicability
of federal laws to Puerto Rico. The proposed standard takes into account culture, history and social-economical factors of the
Commonwealth, not solely congressional intent and rational basis of its construction by Congress.
II. Historical Background,
Puerto Rico was relinquished to the United States through the Treaty of Paris. 7
Afterwards, the island became a territory
or colony governed by the United States under a system of delegated powers granted by Article IV of the United States
Constitution. 8
At this moment in time, Congress was empowered under the Territory Clause of the Constitution, to “make all
needful Rules and Regulations respecting the Territory” . 9
From 1899 to 1950, Congress enacted two Organic Acts to provide
for the internal government of Puerto Rico, known as the Foraker Act, 10
and Jones Act. 11
In this point in time courts held
that the word “State” was not applicable to the “territory” of Puerto Rico as it was constituted under the Organic Act of 1917,
the Jones Act. 12
Subsequently in 1950, Congress enacted Public Law 600, 13
which had the purpose to:
[P]rovide for the organization of a constitutional government by the people of Puerto Rico. Congress adopted Public Law 600 “in
the nature of a compact”; the people of Puerto Rico could vote for the acceptance or rejection of the terms of the compact. Upon
approval *218 by a majority of the voters, the Legislature of Puerto Rico was authorized to call a constitutional convention
to draft a constitution for the island. 14
. . ..
The only requirement as to the content of the constitution was that it provides a republican form of government and includes
a bill of rights. Upon adoption of a constitution by the people of Puerto Rico, the President was authorized to transmit it to
Congress if he found that it conformed to the applicable provisions of Public Law 600. 15
In 1952, upon approval by Congress,
the Puerto Rico Constitution became effective in accordance with its terms. 16
Under those provisions, the Constitution of the Commonwealth of Puerto Rico was adopted under Act No. 447 of Congress
accepting the Constitution. 17
It contained a clear and literal prohibition of the capital punishment with the unequivocal
statement that literally reads: “The right to life, liberty and the enjoyment of property is recognized as a fundamental right of
man. The death penalty shall not exist. (. . .)” . 18
It must be properly understood that under the Constitution of Puerto Rico,
there is not, by definition, an abolishment of capital punishment, since it was abolished prior to that date, in 1929; but more
so given an absolute quality of non-existence. 19

In the Constitutional Convention that took place from September 17, 1951, through February 6 of 1952, the Puerto Rican
Constitution was drafted and written by several representatives from around the island. 20
It is precise in our argument to
establish that Congress made *219 substantial requirements to the Puerto Rican Government, throughout the drafting and
before arriving at the final document that would become the Constitution of Puerto Rico. In order to accept it, Congress's
approval relied upon these modifications to the original draft of the Puerto Rican Constitution and I quote:
1. [D]eletion of a provision patterned after the United Nations ‘Universal Declaration of Human Rights recognizing the right
to work, obtain an adequate standard of living, and social protection in old age or sickness;
2. [A]ddition of a provision assuring continuance of private elementary schools; and
3. [A]ddition of a provision requiring that amendments to the Puerto Rican Constitution must be consistent with United States
Constitution, the Puerto Rican Federal Relations Act, and Public Law 600. 21
Yet, although Congress felt it necessary to require the above mentioned terms before approving the Puerto Rican Constitution,
there is no record of Congress ever addressing, or even mentioning, any opposition towards the prohibition of the death penalty.
It cannot be reasonably contended that Congress had not seen or evaluated the “Death Penalty shall not exist” 22
clause, given
that such a phrase had been seldom seen before in any state document the sort. This gives reason to believe that Congress, in
1952, had no particular protest against the phrase, thus, proceeding subsequently to approve the Constitution of Puerto Rico.
In US v. Acosta Martínez I, Judge Casellas states in the District Courts ruling:
Congress voiced no objection to § 7 of Article II, P.R. Const. art. II, § 7. (. . .) Admittedly, nothing prevented
Congress from conditioning approval of the Constitution upon deletion of this provision, as it did with §
20. Thus, the people of Puerto Rico, in voting to approve the Constitution, had a reasonable expectation
that the death penalty would not exist under Commonwealth status. *220 The application of the FDPA in
Puerto Rico is not only inconsistent with the compact, but it is antithetic to it. 23
A. In The Nature Of A Compact
The significance of the latter discussion is of much importance. It is contented that the United States and the Commonwealth of
Puerto Rico came into a relationship, by a bilateral agreement stipulated in the Constitution of Puerto Rico and the enactment
of the Public Law 600, 24
which leaves no room for speculation on whether it is a compact between the two governments.
The phrase “in the nature of a compact” 25
stated in the PRFRA, 26
has been topic for countless debates. Advocates of its
existence contend, that the bilateral agreement, which produced the Constitution of Puerto Rico and the PRFRA, are, and should
oblige both parties to refrain from unilaterally revoking said documents, therefore arguing that in order to alter any of the
stipulated agreements one party must ultimately account with the other party's consent.
The First Circuit held, in its Opinion in Mora v. Mejía, 27
a year after the ratification of the Puerto Rican Constitution, that “[i]t
is a political entity created by the act and with the consent of the people of Puerto Rico and joined in union with the United
States of America under the terms of the compact” .

The First Circuit further confirmed in 1985, in US v. Quiñones, 28
while citing Mora, 29
stating that:
The authority exercised by the federal government emanated thereafter from the compact itself. Under
the compact between the people of Puerto Rico and the United States, Congress cannot amend the
Puerto Rico Constitution unilaterally, and the *221 government of Puerto Rico is no longer a federal
government agency exercising delegated power. (Emphasis added).
Given these affirmations of the apparent existence of a compact between the United States and the people of Puerto Rico, it
should be understood that the mere enactment of a Federal statute by Congress does not necessarily mean that it must seek
approval by the Puerto Rican people. Although this would be ideal, this argument would not hold water, simply because this
contention would be to deny the plenary powers inherent to Congress.
III. Application of the Federal Death Penalty in Puerto Rico Violates the Right to a Substantive Due Process
In Cohens v. State of Virginia 30
it was stated that:
[I]f the States are to acquiesce in this instance, because they are represented in Congress, and have, therefore, an agency in
making and repealing laws, the same reasoning would justify Congress in legislating beyond their delegated powers.
Due to the unique political status that the Island of Puerto Rico has as a commonwealth, the people in Puerto Rico have no
delegates or representatives that can drive forward local desires of the population. This is also true in presidential elections. The
First Circuit Court of Appeals has stated that “[u] ndoubtedly the most glaring evidence of this egregious disparity is the fact
that they do not elect a single voting representative to a federal government that exercises almost absolute power over them” . 31
Judge Torruella, in his concurring Opinion in Igartúa v. US II, 32
states:
The United States citizens residing in Puerto Rico to this day continue to have no real say in the choice of
those who, from afar, really govern them, nor as to the enactment, application, and administration of the
myriad of federal laws and regulations that control almost every aspect of their daily affairs. 33
*222 Additionally, it has been held that, “[o]n numerous occasions since 1952 Congress has turned a blind eye and a deaf ear
to the continuing inequality to which United States citizens in Puerto Rico are subjected, and a perusal of the Congressional
Record demonstrates the jealousy with which Congress has guarded its plenary power over the Island” . 34
In Igartúa II, 35
in its 6 th
footnote, it is indicated that “[t]he residents of Puerto Rico do elect a Resident Commissioner to
represent their interests before Congress, but that official's lack of a vote obviously diminishes his ability to effectively represent
them” . 36
Analysts have contended that:
Overall, Puerto Rico's lack of federal representation means that Puerto Ricans have no effective role in the
political process of enacting a federal statute and have relatively little input in how the laws are executed
and applied. Additionally, there is less opportunity for relevant questions of law to be vigorously debated
within the federal court system. 37

In Igartúa v. US I, 38
prequel to Igartúa II, 39
the District Court's Opinion specified:
The importance of protecting the right to vote emanates from the bilateral nature of a representative government. The United
States citizens residing in Puerto Rico are subject to the laws of the United States and therefore have a vested interest in
participating in Presidential elections.
. . ..
[T]he essence of freedom is for individuals to vote for those who represent them. This bilateral interaction is in the nature of a
contract whereby officials acquire from the citizenry a mandate to govern derivative of the right to vote. 40
Many critics argue that the lack of representation in the approval of statutes in Congress do, evidently, violate the bilateral
terms agreed upon by both governments when ratifying the Constitution of Puerto *223 Rico and the PRFRA. With respects
to this contention, scholars have argued that:
The concept of judicial restraint is based on the notion that courts should respect the expressed will of
the people as reflected through the lawmaking process. However, the idea that our democracy has a self-
correcting ability-- that general dissatisfaction with federal legislation will be channeled through the ballot
box--does not apply to Puerto Rico. The application of a federal law that violates the will of the
Puerto Rican people as expressed through the Puerto Rican Constitution is, therefore, fundamentally
different from the application of federal law despite state opposition. (Emphasis added). This factor
becomes even more significant when the federal law in question concerns a subject matter as
controversial as capital punishment. 41
Under these controversial views and opinions, we must re-enter our previous argument, and be reminded of the existence of a
compact between the people of Puerto Rico and the United States. It has already been established earlier in this essay that courts
have confirmed this theory and established its inability to be unilaterally altered by one party, without the express consent of
the other. In other words, in order to re-write the Puerto Rican Constitution, Congress must seek consent from the people of
Puerto Rico in a referendum or any such democratic procedure alike.
A persuasive statement on this matter is found by voice of a United States Representative to the Committee on Information
from Non-Self-Governing Territories, said as follows:
A most interesting feature of the new constitution is that it was entered into in the nature of a compact
between the American and the Puerto Rican people. A compact, as you know, is far stronger than a treaty.
A treaty usually can be denounced by either side, whereas a compact cannot be denounced by either party
unless it has the permission of the other. 42
The United States - Puerto Rico Commission on the Status of Puerto Rico of 1966 conveys its' understanding on this particular
subject:
*224 The Commission does have views on the political character of the Commonwealth relationship
created in 1950-1952. The relationship is politically and morally valid. It constitutes a solemn undertaking,
based upon mutual consent, between the people of the United States acting through their Federal

Government and the people of Puerto Rico acting directly as well as through their established governmental
processes.
Now, what must be understood of Igartúa II, is that the Court acknowledges that there is a clear lack of representation, but in
this case it decides not to intervene in such political matters, as the right to voting privileges in Puerto Rico. However, what
cannot go undetected is the warning proffered in dicta in this case that:
Although this is not the case, nor perhaps the time, for a federal court to take remedial action to correct what is a patently
intolerable situation, it is time to serve notice upon the political branches of government that it is incumbent upon them, in
the first instance, to take appropriate steps to correct what amounts to an outrageous disregard for the rights of a substantial
segment of its citizenry. A failure to do so countenances corrective judicial action. 43
. . ..
It may be that the federal courts will be required to take extraordinary measures as necessary to protect discrete groups
“completely under the sovereignty and dominion of the United. 44
What should be taken away from this decision is, that in absence of corrective actions by Congress, courts will have to intervene
in order to provide securities to United States citizens in Puerto Rico, who have no rightful representation in Congress, and
cannot vote in the U.S. presidential elections. Judge Torruella states that “[u]ndoubtedly the most glaring evidence of this
egregious disparity is the fact that they do not elect a single voting representative to a federal government that exercises almost
absolute power over them” . 45
It must not be forgotten that Puerto Ricans have fought along side of the United States in many wars and battles, exposing their
citizens lives in order to defend the United States' way of life and its liberties. This was a topic argued in Igartúa I: 46
*225 Like United States citizens residing in the District of Columbia and the fifty states, those residing in Puerto Rico have
fulfilled the highest calling of citizenship, fighting and dying in the battlefields in two world wars, the Korean, Vietnam and
Gulf wars. Still, despite paying for their citizenship with blood, U.S. citizens residing in Puerto Rico have not entered the
Presidential ballot box. It is inconceivable to our constitutional order to expect that the government can place our nation's sons
and daughters in harm's way and not recognize the power of those individuals to have a say in electing those who will make
that decision. It is no less preposterous that the United States can fight for the freedom of others abroad and ignore the lack
of liberty of citizens at home.
Given that federal courts have an obligation to the citizens of the United States residing in Puerto Rico, it should be concluded
that the approval of the FDPA and its application in Puerto Rico must be held unconstitutional. As mentioned before, and stated
in the 14 th
Amendment of the United States Constitution, 47
it disrupts the basic right of the substantive Due Process for the
people in Puerto Rico. Considering that the “[s]ubstantive due process protection prevents the government from engaging in
conduct that shocks the conscience, or interferes with rights implicit in the concept of ordered liberty”, 48
it must be put to
the shock the conscience test.
Legislation over the Island without consent of the people of Puerto Rico and the imposition of the death penalty in Puerto Rico
does in fact “shock the conscience” of Puerto Ricans. This ultimately because they “had a reasonable expectation that the death
penalty would not exist under [the] Commonwealth status. The application of the FDPA in Puerto Rico is not only inconsistent

with the compact, but it is antithetic to it” . 49
(The lack of representation, previously argued, should also be considered in the
analysis of the proposed Córdova Test). 50
IV. Meaning of “Locally Inapplicable”
It was first stated that federal laws considered “locally inapplicable” to Puerto Rico were not to apply to the island, in the
Foraker Act of 1900. 51
This limitation was later included in the Jones Act. 52
These *226 provisions remained unaltered
when the Public Law 600 53
was established in 1950.
Now, in light of what is proffered in Consentino v. International Longshoremen's Association of Ports of Puerto Rico, 54
and
after the approval of the PRFRA, the appropriate tool to determine when federal legislation will or will not apply to Puerto
Rico, is the Section 9 of the Puerto Rican Federal Relations Act, 55
which clearly states that: “[t]he statutory laws of the United
States not locally inapplicable, except as hereinbefore or hereinafter otherwise provided, shall have the same force and effect
in Puerto Rico as in the United States (. . .)” . 56
Nevertheless, what has relevant substance to the problem at hand can be viewed when Judge Snyder in Consentino, states:
[A]s to local application it may well be, although I come to no positive conclusion on it in this case, that in Puerto Rico Federal
statutes which would not be valid if applied locally in a State are no longer valid if so applied in Puerto Rico, in view of the
terms of Act No. 600 (. . .) That is a question which remains to be solved in the future in an appropriate case. 57
Consentino, 58
fails to provide a criterion to be used, under Sec. 9 of the PRFRA, 59
in order to determine when a congressional
statute is in fact “locally inapplicable” to Puerto Rico. It solely states that such a question should be solved in a future appropriate
case. Similarly, US v. Ríos 60
repeats the previous controversy found in Consentino, where it was held that Puerto Rico could
no longer be defined as a territory or possession. It is stated that: “the Commonwealth legislature and governor reign supreme
over all matters of local *227 concern” . 61
Thus interpreting Section 901(2), Title 15 U.S.C.A., 62
it defines ‘interstate or
foreign commerce’ as commerce ‘within any Territory or possession’, “locally inapplicable” in Puerto Rico under Section 9
of PRFRA. 63
Although this case reasserts Puerto Rico's higher autonomy over local concerns, given it's newly acquired political status as a
commonwealth, it does very little to pronounce an effective test or any sort of criteria by which to assist courts when faced with
determining the applicability of Congress enacted statutes, nor, alternatively, with regards towards the meaning of the phrase
“locally inapplicable” under Sec. 9 of the PRFRA. 64
The only proclamation made in Ríos that could help us better understand the Sec. 9 of the PRFRA 65
states:
Moreover, Sec. 9 of the Federal Relations Act, Title 48 U.S.C.A. § 734, on which the government places so
much stress, has acquired such a vitality after the establishment of the Commonwealth that it may be safely
accorded, as regards the applicability to the Commonwealth of the statutory laws of the United States, a
function which is substantially similar to the function of the Interstate Commerce Clause of the Constitution,
as regards the relations between the Federal Government and the governments of the different states of
the Union. 66

We must direct our attention to the fact that in no manner does the cited statement shed any light over the thought process that
should be employed by courts when interpreting the “locally inapplicable” phrase found in Sec. 9 of PRFRA, 67
nor does it
give any plausible test that could be put forth when faced with such a problem.
Seems pertinent to reveal that the United States Supreme Court in Examining Board v. Flores de Otero, 68
noted that, “this
Court's decisions respecting the rights of the inhabitants of Puerto Rico have neither been unambiguous nor exactly uniform” . 69
This statement by the United States Supreme Court seems to imply their understanding and *228 recognition that there are
many inconsistencies relating to decisions pertinent to Puerto Rico, and how federal laws are to be applied to the Island.
In US v. Acosta Martínez I, 70
District Judge Casellas held that the FDPA was “locally inapplicable” under section 9 of
PRFRA, 71
taking into consideration various factors present in Puerto Rico, and because the lack of representation of the people
of Puerto Rico in Congress was to be considered as a violation of their substantive due process rights. It seemed as if there had
finally been a clear and objective manner in which the courts would determine the application of federal law to Puerto Rico,
taking into account the Island's particular political status and also its history, culture and values opposing the death penalty. 72
Nevertheless, in US v. Acosta Martínez II, 73
by voice of the Hon. Judge Lynch of the First Circuit in Boston, struck the inferior
courts ruling on the grounds that “[t]he questions of whether a statute applies to Puerto Rico and the meaning to be given to
the phrase “locally inapplicable” are matters of congressional intent.” 74
The First Circuit arrived at the conclusion that it was
Congress's intent to apply the FDPA to Puerto Rico because, since the FDPA is a procedural statute, it had no necessity to
specify the localities where the act would apply, understanding that this was not the purpose of the law. Hence, it was assumed
that since the felonies that were under the FDPA applied to Puerto Rico, “[t]hese substantive sections of the criminal statutes
express congressional intent that the death penalty apply to federal criminal defendants so charged in Puerto Rico.” 75
In the
Courts decision, it was concluded that:
Because Congress was clear about its intent to apply the death penalty to these crimes in Puerto Rico,
there is no need to resort to default rules of interpretation. Even if the congressional intent were less clear
and we applied those default rules, the outcome would be the same, since the default rule presumes the
applicability of federal laws to Puerto Rico. There is little reason to think that the federal *229 interest
in defining the punishment for federal crimes would have been considered by Congress to be a matter for
local veto power. 76
This decision must be contented for one main reason; the Court of Appeals arrived at its conclusion, that application of federal
laws was a matter of congressional intent, by solely citing one authority: Puerto Rico v. Shell Co. 77
On that matter, it is
solely said that: “[t]he questions of whether a statute applies to Puerto Rico and the meaning to be given to the phrase “locally
inapplicable” are matters of congressional intent.” 78
It must be clarified, however, that Puerto Rico v. Shell Co. 79
is distinguishable from US v. Acosta Martínez II. 80
Initially,
the decision in Shell, in 1937, was not in the context of the current situation of Puerto Rico. In that year, Puerto Rico was
under the authority of Congress by way of the Jones Act, 81
which was an organic act approved solely by Congress. At that
historical point in time Puerto Rico was still treated more like a territory than like a state. 82
However, this is no longer the
treatment given to Puerto Rico since 1952 and the drafting of the Constitution of Puerto Rico. It has been reiterated “that the

[[C]onstitution of the Commonwealth is not just another Organic Act of the Congress” . 83
(. . .) The “[C]onstitution was drafted
by the people of Puerto Rico through their duly chosen representatives in constitutional convention assembled. It stands as an
expression of the will of the Puerto Rican people” . 84
Nonetheless, interestingly the appellate court chose to rely solely on a case law decided before the PRFRA 1950, and before the
1952 Constitution of Puerto Rico, even though there is jurisprudence resolving the matter and interpreting Puerto Rico's newly
acquired political and legal status. Now, the question that should be properly asked here is; if the same case were presented
today, would it be decided in the same manner?
*230 In Córdova v. Chase Manhattan, 85
Judge Breyer of the First Circuit asked precisely this question, in a case that seemed
to be a sequel of Shell. 86
It seemed to answer the hypothetical question presented above, because this case explained that
the context in Puerto Rico upon deciding Shell, 87
revolved around being treated more like a territory than a state. Whereas,
currently in Puerto Rico, this is completely reversed, Puerto Rico is now treated as state for legal purposes due to its self-
government and state-like autonomy. 88
However, this does not answer, as it was stated in Shell, if the appropriate criterion for interpreting “local inapplicability” was
congressional intent. However, Córdova, 89
reveals substantial historic facts about the questioned phrase “locally inapplicable” .
It is stated that when clarity over congressional intent is patent and evidence of public policy is obvious, there can be no other
conclusion but that federal law must be applied to any state in question. 90
We believe that there would have to be specific evidence or clear policy reasons embedded in a particular statute to demonstrate
a statutory intent to intervene more extensively into the local affairs of post-Constitutional Puerto Rico than into the local affairs
of a state. 91
Consequently, and with respects to congressional intent, it is safe to conclude that in order for that intention to be sufficient to
determine that a federal statute should apply, courts would necessarily need to account for specific evidence or a clear policy
reasons in a statute that affirms that intention. As we can appreciate under this analysis, mere inferences and deductions, such
as those made by Judge Lynch in US v. Acosta Martínez II, 92
do not suffice for its application.
Now, Córdova, 93
proclaims in dicta what factors should be considered to determine the application of a federal law, where
there is no clear policy nor specific evidence available to conclude on congressional intent of application of the FDPA. 94
(Emphasis added).
*231 [S]ection 9 of the FRA a provision that states “The statutory laws of the United States not locally inapplicable, shall
have the same force and effect in Puerto Rico as in the United States” .
. . ..
This argument has some force, for an examination of the history of the “locally inapplicable” language reveals a design to defer
to local legislatures in local matters and an intent to interpret the phrase dynamically: changing events, such as enactment of
a different local antitrust law or the change in the island's legal status, might well make Sherman Act section 3 “locally
inapplicable” today though it was applicable at the time of the Shell decision in 1937. (Emphasis added). Given our
holding, we do not believe it necessary to explore these theories in detail, or to choose among them, (. . .)” . 95

In summary, in the Córdova 96
case the court held it unnecessary to analyze any further under section 9 of the PRFRA, 97
simply because it was “fair to assume that the framers of the Sherman Act, had they been aware of the FRA and subsequent
Constitutional developments, would have intended that Puerto Rico be treated as a “state” under the Act, once Commonwealth
status was achieved” . 98
However, it stated that “[t]hese considerations lead us to conclude that Sherman Act section 3 does not apply to Puerto Rico,
whether one bases the result on a view of the “intent” of the Sherman Act's framers, on a “repeal” of inconsistent law implicit
in FRA section 6, or on the view that section 3 is now “locally inapplicable” while section 1 is not. In other words, all roads
lead to Rome” . 99
Therefore, “locally inapplicable” may well be determined by congressional intent, nonetheless, in order for it to be sufficient and
render unnecessary the evaluation of changing events, Puerto Rico's legal status, or any factor alike, as stated in Córdova, 100
the court must account for specific evidence or a clear policy of a statute.
On the contrary, in the absence of the aforesaid evidence or policies, Córdova, 101
holds precedent for the establishment
of a formal test to determine the local inapplicability of a Congress enacted statutes that could include an examination
of Puerto Rico's culture, history, social *232 and political changes, and even the values of the territory, state or
commonwealth. 102
(Emphasis Added).
V. Proposed Córdova Test
A. Adoption of the Córdova Test For The Determination of “Local Applicability” of Federal Laws to Puerto Rico
Through examination of Córdova v. Chase Manhattan 103
we find a historical background of the infamously controversial
axiom, “locally inapplicable” . Here it is stated that:
The phrase “not locally inapplicable” originated in Henry Clay's Report of the Committee of Thirteen, the
proposed Compromise of 1850. As part of the settlement of the clash of interests sparked by the Wilmot
Proviso (a proposed Congressional ban of slavery in New Mexico and other territories), the Compromise
was silent on introduction of the “local” institution of slavery to these territories. The Southern view was
that changing social and economic conditions (including adaptation to dry soil) might bring about slavery
in New Mexico, perhaps supported by retained Mexican law and custom. In addition, the Southern view
held that the territorial legislature should be free to recognize and support slavery even if such territorial
law thereby superseded general federal law dealing with personal rights. 104
It continues to reveal further details concerning the phrase's historical application:
[T]he phrase “not locally inapplicable” was viewed by its Southern proponents as a means by which New Mexico, should it
choose to do so, could adopt slavery despite general federal laws dealing with personal rights. 105
. . ..

[T]he phrase “not locally inapplicable” (. . .) expressly left the issue of slavery in New Mexico to be determined by developing
local *233 social, economic and legislative conditions, and, thereby, staved off the political crisis that enveloped the nation
several years later. 106
Moreover, Judge Breyer explains the lawmaker's intentions, giving the reasons why, and under what situations it was created
upon:
Senator Foraker, in 1900, deliberately chose this model (rather than following the simpler Wisconsin territorial act model “so
far as may be applicable”). His choice reflects, if anything, a more, rather than less, deferential view of the effect of local social,
economic and legislative developments on general federal law. 107
However, the most important statement made by Judge Breyer, for our argument, is found in his conclusions of the historical
background of “locally inapplicable”: “[i]n sum, the phrase reflects at least some intent that not only developing social and
economic conditions but also emerging territorial self-government could render general federal law inapplicable” . 108
(Emphasis added).
Therefore, by applying the congressional intent ruling in US v. Acosta Martínez II, 109
it can be concluded that existing specific
intention of the lawmaker, who created the predecessor of the PRFRA, 110
(Foraker Act of 1900, supra), which was passed
unaltered to said act, then it must therefore be established conclusively a formal criterion for the determination of “locally
inapplicable” federal laws under section 9 of the PRFRA. 111
B. Proposed Córdova Test
1) When the application to Puerto Rico of a federal law is not explicitly stated, and:
a. There is no specific evidence.
b. Nor, a clear policy that undeniably demonstrates that intention by Congress.
2) It must then, be determined under the section 9 of the PRFRA, 112
which was intended to take into account:
*234 a. Developing social and economic conditions;
b. Emerging territorial self-government considerations that could render federal inapplicable. 113
C. Application of the Córdova Test to the Federal Death Penalty Act
In US v. Acosta Martínez II, 114
it was held by the First Circuit, in the striking of the local inapplicability of the FDPA by the
inferior District Court, since “substantive sections of the criminal statutes [under the act that expressly apply in Puerto Rico]
express congressional intent that the death penalty apply to federal criminal defendants so charged in Puerto Rico” . 115

However, is this a clear enough policy to waive the examination of its application of the FDPA, in Puerto Rico under the sec.
9 of the PRFRA? 116
As stated in Córdova, 117
necessarily, there will have to exist “clear policy reasons embedded in a particular statute to
demonstrate a statutory intent” . 118
We surely cannot be lead to believe that each specific felony that applies to Puerto Rico can
deliver a patent demonstration of Congress's intention to apply the death penalty. What is simply stated under those enactments
is the intention to prosecute the violations of said felonies on the Island. However, with respects to the death penalty, and
understanding the detrimental implications of such a penalty in Puerto Rico, these acts are inconclusive and certainly unclear.
In these respects, we must reiterate Judge Casellas's statement in the District Courts Opinion:
The extraordinary nature of capital punishment requires a higher degree of clarity and precision. Reason and common
sense dictate that had Congress intended to apply the death penalty in the Commonwealth, it would have done so by the
plain declaration, and would not have left it to mere inference. 119
(Emphasis Added).
*235 Under this reasoning, there can be no other conclusion that it must be determined under section 9 of PRFRA. 120
Thus, by applying the proposed Córdova Test: 121
1) Neither:
a. The statute's statement of purpose or its historical or procedural documents, with respects to the enactment
of the FDPA 122
make no mention whatsoever of its express application to Puerto Rico, thus there is an
absence of specific evidence. b. Nor is there an existence of a clear policy reasons embedded in a particular
statute to demonstrate a statutory intent.
2) It must then be determined under the section 9 of the PRFRA, 123
which was intended to take into account:
a. Developing social and economic conditions;
i. Fundamental right of life. Death is different.
ii. The abolishment of the death penalty in 1929.
iii. Historical repugnance of the death penalty of the people of Puerto Rico.
b. Emerging territorial self-government considerations that could render federal inapplicable.
i. The Constitution holds the death penalty non-existent.
ii. The compact between Puerto Rico and the United States cannot be unilaterally altered by Congress without the express
consent of the people of Puerto Rico.
iii. The lack of representation of Puerto Rico in Congress in the lawmaking process.
iv. The lack of representation in the White House, because of their inability to vote.

The accumulative pondering of these factors, applied to the proposed Córdova Test, 124
should leave no doubt of the “local
*236 inapplicability” of the Federal Death Penalty Act of 1994, 125
in the Commonwealth of Puerto Rico.
VI. Conclusion
The application the Federal Death Penalty Act of 1994 126
to Puerto Rico collides directly with the provisions stipulated in
the bilateral agreements held in the establishment of the Puerto Rican Constitution. After examining the nature of a compact
in which the P.R. Constitution 127
was created upon, our argument must conclude that its application is an infringement of the
very stipulations agreed upon and which created an expectation of its upholding by both parties involved. It must therefore be
concluded that it does “shock the conscience” of Puerto Rican society and held locally inapplicable to the Commonwealth of
Puerto Rico under the section 9 of the PRFRA. 128
Federal courts must acknowledge their obligation to provide the United States citizens residing in Puerto Rico with a substantive
due process, in light of the fact that there is little, or no, representation of the Puerto Rican people in Congress and federal
laws are passed arbitrarily without giving express explanations or motives as to why they are to be applied to the Island. By
adopting the proposed Córdova Test, 129
courts can mitigate the adverse consequences arisen from federal statutes that are not
specifically applied to Puerto Rico by Congress, and the courts can take into consideration local factors that might hold such
federal statutes locally inapplicable in the Island.
Furthermore, it should be understood that the proposed criterion is a valuable tool, not only to render federal laws inapplicable
to Puerto Rico, but because it can also be utilized in similar circumstances to uphold the application of a federal law that is not
explicitly applied by Congress to apply in Puerto Rico. In other words, with the adoption of the Córdova Test, 130
courts will
be able to ponder whether or not a congressional statute is in accordance with the views and cultural values of the people of
Puerto Rico, and if so, federal laws not literally applied might also be held applicable under the same standard.
*237 The contentions held in this article go to argue, not whether Congress can or cannot pass federal laws to Puerto Rico, but
rather that limits exist, and that limit is found in the section 9 of the Puerto Rican Federal Relations Act. 131
Therefore, when
Congress fails to apply a law undoubtedly to the Commonwealth of Puerto Rico, federal courts can mitigate the arbitrary and
unjustified application of federal laws, by applying a consistent and objective analysis, such as the one proposed above. Given
the unique legal and political status of Puerto Rico and its relationship with the United States of America, provisions must be set
in order to provide the Island's citizens a rightful opportunity to be heard, and ultimately their views and values accounted for.
This conclusion is in accordance, not only with the agreements entered while approving the Puerto Rican Constitution, 132
but
also with the most basic of principles of a democratic society and a proper substantive due process. Courts must refrain from
evading the controversies arisen from such actions by Congress towards Puerto Rico, using the argument that they are political
questions. Even though they could be viewed as such, this doesn't mean that they cannot adopt rational measures to resolve
said problems. In the greater scheme of things, the Puerto Rican people should not be punished for the inability to resolve the
quandary of the Island's legal and political status. This simply would be unjust to uphold, and a democratic society should not
tolerate such a reprimand on its citizens.

Footnotes
a1 Second year law student at the Pontifical Catholic University of Puerto Rico, day program. The author is an active member of the
journalist body and coordinator for the Law Review “Revista de Derecho Puertorriqueño” . The author wishes to express his utmost
gratitude towards all the personnel whom contributed to the publication of this article. A special appreciation to the Chief Editor
of the prestigious Law Review, and close personal friend, Laura Malavé Seda for the diligent mentoring, and superb editing skills
provided, throughout the entire investigative and writing process. This article was entered, in the form of a brief, in the Puerto Rican
Bar Association's Annual Moot Court Competition of 2014 in Orlando, FL, concerning the difficulty of the application of the Federal
Death Penalty Act of 1994 to Puerto Rico, in which the author participated with the student Jean Peña Payano. The argument stated
in this article was defended against three State Supreme and Appellate Court Justices by the author, and the participating team was
recognized as one of the top three overall teams of the competition.
1 18 U.S.C § 359 (1994).
2 P.R. CONST. art. II, § 7.
3 48 U.S.C. § 734 (1950).
4 Id.
5 US v. Acosta Martínez I, 106 F. Supp. 2d 311 (2000).
6 Córdova v. Chase Manhattan, 649 F.2d 36 (1981).
7 Treaty of Paris, 30 Stat. 1754 (1899).
8 U.S. CONST. art. IV, § 3, cl. 2.
9 Id.
10 Act of Apr. 12, 1900, ch. 191, 31 Stat. 77.
11 Act of Mar. 2, 1917, ch. 145, 39 Stat. 951.
12 Benedicto v. West India & Panama Telegraph Co., 256 F. 417 (1919).
13 48 U.S.C. § 731, 734 (1950).
14 48 U.S.C. § 731(c) (1950).
15 48 U.S.C. § 731(d) (1950).
16 US v. Quiñones, 758 F.2d 40 (1985).
17 48 U.S.C. § 731(d) (1950).
18 P.R. CONST. art . II, § 7.
19 Ricardo Alfonso, The Imposition of the Death Penalty in Puerto Rico: Human Rights Crisis In the Path Towards Self-Determination,
76 REV. JUR. U.P.R. 1077 (2007).
20 Diario de Sesiones de la Convención Constituyente de Puerto Rico (1952). It should be highlighted that, during the process, a
proposition was made to alter and add a subsequent phraseology to employ provisions for a future legislation of capital punishment, but
it did not forego and ultimately was maintained unaltered, as it reads presently. This must ultimately indicate the moral conviction, of
the very able, educated and illustrious men and women involved, to establish that the death penalty was to never come into existence,

in any point in time in the future, nor under any circumstances. The delegates understood that their duty was to ostentatiously include
the express abolishment in the Bill of Rights in order to set the standard for other states, countries and territories, regarding the
Commonwealth's public and direct opposition against state-employed executions.
21 Arnold Leibowitz, The Applicability of Federal Law to the Commonwealth of Puerto Rico, 56 GEO. L. J. 230 (1997).
22 P.R. CONST. art . II, § 7.
23 Arnold Leibowitz, The Applicability of Federal Law to the Commonwealth of Puerto Rico, ante, pages 320-321.
24 48 U.S.C.A. § 731(b) (1950).
25 Id.“Fully recognizing the principle of government by consent, sections 731b to 731e of this title are now adopted in the nature of a
compact so that the people of Puerto Rico may organize a government pursuant to a constitution of their own adoption.”
26 Id.
27 Mora v. Mejía, 206 F.2d 377 (1953).
28 US v. Quiñones, 758 F.2d 40, 42 (1985).
29 Mora v. Mejía, 206 F.2d 377, 386-388 (1953).
30 Cohens v. State of Virginia, 19 U.S. 264 (1821).
31 Igartúa v. US II, 229 F.3d 80 (2000).
32 Id. Concurring Opinion (Justice Torruella).
33 Id. page 88.
34 Id.
35 Id.
37 Ricardo Alfonso, The Imposition of The Death Penalty in Puerto Rico: Human Rights Crisis in the Path Towards Self-Determination,
supra footnote 21.
38 Igartúa v. US I, 107 F. Supp.2d 140 (2000).
39 Igartúa v. US II, 229 F.3d 80 (2000).
40 Igartúa v. US I, 107 F. Supp.2d pages 146-147.
41 Elizabeth Vicens, Application of the Federal Death Penalty Act To Puerto Rico: A New Test for the Locally Inapplicable Standard,
80 N.Y.U. L. REV. 350 (2005).
42 Press Release, United States Mission to the United Nations, No. 1741 (Aug. 28, 1953).
43 Igartúa v. US II, 229 F.3d 80, 90 (2000).
44 Id.
45 Igartúa v. US II, 229 F.3d page 86.
46 Igartúa v. US I, 107 F.Supp. 2d 140 (2000).

47 U.S. CONST. amend. XIV.
48 State v. Thompson, 508 S.E.2d 277 (1998).
49 U.S. v. Acosta Martínez I, 106 F. Supp. 2d 311, 321 (2000).
51 Act of Apr. 12, 1900, ch. 191, 31 Stat. 77.
52 Act of Mar. 2, 1917, ch. 145, 39 Stat. 951.
53 48 U.S.C. § 731, 734 (1950).
54 Consentino v. International Longshoremen's Association of Ports of Puerto Rico, 126 F. Supp. 420 (1954).
55 48 U.S.C. § 731, 734 (1950).
56 Id.
57 Consentino v. International Longshoremen's Association of Ports of Puerto Rico, ante, page 421. Such as the cited statement
pronounces, section 9 of the PRFRA, was evaded in this discussion. Seems to imply to us that given his understanding of the phrase,
since Puerto Rico's new status as a commonwealth it should be treated legally as “state”, this could therefore render all Federal statutes
that are inapplicable to states also inapplicable to Puerto Rico, being also true the other way around.
58 Id.
59 48 U.S.C. § 731 (1950).
60 US v. Ríos, 140 F. Supp. 376 (1956).
61 Id. page 381.
62 15 U.S.C.A § 901(2) (1968).
63 US v. Ríos, 140 F. Supp. page 381.
64 48 U.S.C. § 731 (1950).
65 Id.
66 US v. Ríos, ante.
67 48 U.S.C. § 731 (1950).
68 Examining Board v. Flores de Otero, 426 U.S. 572 (1976)
69 Id. page 599.
70 US v. Acosta Martínez I, 106 F. Supp. 2d 311 (2000).
71 48 U.S.C. § 731 (1950).
72 Id. Judge Casellas, in his determination of the FDPA's “local inapplicability” under the sec. 9 of the PRFRA, took into consideration
many factors opposing the death penalty in the Island. For example, the Opinion examined the abolishment of 1929, the nature of a
compact of the PR Constitution, lack of representation in Congress, etc.

73 US v. Acosta Martínez II, 252 F. Supp. 3d 13 (2001).
74 Id. page 18.
75 Id. page 19.
76 Id. page 20.
77 Puerto Rico v. Shell Co., 302 U.S. 253, 258 (1937).
78 US v. Acosta Martínez II, 252 F. Supp. 3d 13, 18 (2001).
79 Puerto Rico v. Shell Co., ante.
80 US v. Acosta Martínez II, ante.
81 Act of Mar. 2, 1917, ch. 145, 39 Stat. 951.
82 Puerto Rico v. Shell Co., 302 U.S. 253 (1937). “It may be justly asserted that Porto Rico is a completely organized territory, although
not a territory incorporated into the United States, and that there is no reason why Porto Rico should not be held to be such a territory.”
83 Figueroa v. People of Puerto Rico, 232 F.2d at 620 (1985).
84 Id.
86 Puerto Rico v. Shell Co., ante.
87 Id.
88 Córdova v. Chase Manhattan, 649 F.2d page 42.
89 Id.
90 Id.
91 Id.
94 18 U.S.C § 359 (1994).
95 Córdova v. Chase Manhattan, 649 F.2d pages 43-44.
96 Id.
97 48 U.S.C. § 731(1950).
98 Córdova v. Chase Manhattan, 649 F.2d page 42.
99 Id. page 44.
100 Id.
101 Id.

102 Id.
103 Id. pages 43-44.
104 Id.
105 Id.
106 Id.
107 Id.
108 Id.
110 48 U.S.C. § 731 (1950).
111 Id.
112 Id.
113 Córdova v. Chase Manhattan, 649 F.2d 36, 43-44 (1981).
115 Id.
116 48 U.S.C. § 731 (1950).
118 Id.
119 US v. Acosta Martínez I, 106 F. Supp. 2d 311, 319 (2000).
120 48 U.S.C. § 731 (1950).
121 Córdova v. Chase Manhattan, ante.
122 18 U.S.C. § 359 (1994).
123 48 U.S.C. § 731 (1950).
125 18 U.S.C § 359 (1994).
126 Id.
127 P.R. CONST. art . I, § 1.
128 48 U.S.C. § 731 (1950).
130 Id.

131 48 U.S.C. § 731 (1950)
132 P.R. CONST. art . I, § 1.
54 REVDP 215
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

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