The Predatory Nature of Unchecked Discretionary Power
Discussion
– 24 CFR Part 3282
By: John Taylor
The American Internet Society of
Manufactured Home Owners (TAISMHO)
Glossary
24 CFR Part 3280 – The Manufactured Home Construction and Safety
Standards (MHCSS)
24CFR Part 3282 - Federal Manufactured Home Procedural and
Enforcement Regulations
MHCSS Act – 42 USCA, Chapter 70, The National Manufactured home
Construction and Safety Standards Act of 1974 (§5401 et seq.)
MHI
Act of 2000 – The Manufactured Housing Improvement Act of 2000
USDOJ
– United States Department of Justice
FBI
– Federal Bureau of Investigation
Dealer
– “Retailer,” akin to Wal-Mart, Kmart, Sears, etc., as of the MHI Act of 2000
Secretary
– The U.S. Secretary of Housing & Urban Development (HUD)
PIA
– Primary Inspection Agency
DAPIA
– Design Approval Primary Inspection Agency
IPIA
– Production Inspection Primary Inspection Agency
PART 1 -- OPENING STATEMENT
“To make out a proper danger creation claim, a plaintiff must demonstrate that (1) the charged state entity and the charged individual actors created the danger or increased plaintiff's vulnerability to the danger in some way; (2) plaintiff was a member of a limited and specifically definable group; (3) defendants' conduct put plaintiff at substantial risk of serious, immediate, and proximate harm; (4) the risk was obvious or known; (5) defendants acted recklessly in conscious disregard of that risk; and (6) such conduct, when viewed in total, is conscience shocking.”
Jessica Gonzales v. City of Castle Rock, No. 01-1053, (U.S. 10th Cir. Appeals, October 15th 2002), (citing , Currier v. Doran, 242 F.3d 905, 918 (10th Cir. 2001), (citing Armijo v. Wagon Mound Pub. Sch., 159 F.3d 1253, 1262-63 (10th Cir. 1998))
Abuse of administrative power has never availed itself in a more glaring and egregious example than what the U.S. Secretary of Housing has done here to the purchasers of manufactured homes, and against those least able to defend themselves against the boundless injury arising from his abuse of power.
Nullus jus alienum forisfacere potest – No one can forfeit another’s right
It would be fair to say that no one can forfeit another’s right or deny a right to them, absent constitutional due process.
Paraphrasing Thomas Jefferson, laws are written for people of ordinary understanding and they should not be contrived to mean everything or nothing at all.
While the Secretary wrote many regulations under the guise of administrative implementation of the MHCSS Act of 1974, much of what he wrote could not have originated from the authorities as established in the MHCSS Act of 1974. As it was intended to be, as with any corrupt enterprise, care was taken by the Secretary to conceal the nature of his enterprise.
The Secretary’s artful use of subtle loopholes and ambiguities effectively segregate the manufacturer from the greater whole of his or her liability under the National MHCSS Act, and in doing so; segregate the purchasers of the manufacturer’s manufactured homes from rights afforded to them under the MHCSS Act.
At large, 42 USCA, Chapter 70 (§5401 et seq.) is unambiguous about what is meant or intended, and thereby, Chapter 70 in many instances could have been implemented by statutory reference. For example, there is nothing ambiguous about the penalties prescribed in 42 USCA §5410 of the MHCSS Act and what behavior under 42 USCA §5409 would give rise to such penalties. In spite of this, the Secretary for no rational or legal reason felt that unless he interpreted the clear meaning of these sections for the people, the people would not understand what behavior was against the law, and what penalties any person that engaged in such behavior could incur. As will be discussed later, what he wrote for regulatory implementation of this section is vastly narrower and weaker than what our elected representatives wrote.
The primary statutory means for preventing nonconforming manufactured homes from being delivered into commerce for sale to a purchaser is proactive and not reactive. Hence, the Secretary’s regulatory program should be designed to the maximum extent possible; to ensure that nonconforming manufactured homes are not manufactured and delivered to the purchasers (42 USCA §5402(10)) of manufactured homes. If the proactive approach fails to achieve the objective, Congress provided each purchaser with the right to reactive remedy for any defects in any manufactured home by the manufacturer in lue of affording the purchaser with the right under the MHCSS Act to private cause of action.
As will be apparent by the end of this discussion, the Secretary’s regulatory program, while abound with activity, none of it has any quantitative objective towards providing cure for any injury incurred by any purchaser resulting from the manufacturer’s violation of the purchaser’s rights under MHCSS Act. It can be accurately said that all activity in the Secretary’s manufactured home program has NO purpose other than to serve the needs of the Secretary’s manufacturers, and to misrepresent to the public the true nature of manufactured housing.
It is important to note that this discussion is largely inapplicable to the Commonwealth of Pennsylvania, which stays focused on the common sense approach as written by the 93rd Congress, and is not distracted by the capricious approach as written by the HUD Secretary.
The Secretary’s Alternative Construction Process makes a good starting place for beginning this discussion.