PART 2 -- DUE PROCESS
Procedural due process protects individuals from government actions in the civil as well as the criminal sphere. These protections have been extended to include not only land and personal property, but also entitlements, including government-provided benefits, licenses, and positions.
42 USCA §5409(a)(1) expressly states that each such manufactured home must meet all applicable MHCSS if it is the manufacturer’s intent that such will be delivered into commerce for sale, sell, lease, offer for sale or lease. Accordingly, each individual who purchases a manufactured home – in good faith for purposes other than resale (42 USCA §5402(10)) – is afforded the right or is entitled under the MHCSS Act (Public Law), to a manufactured home that complies with all applicable MHCSS (42 USCA §5409(a)(1)).
The Secretary’s Alternative Construction (AC) process (24 CFR 3282.14) [1] violates the core precept of the MHCSS Act that no person shall manufacture (emphasis added) with the intent to sale, deliver, or introduce into commerce, any manufactured home that does not comply with all applicable MHCSS (42 USCA §5409(a)(1)).
Furthermore, the AC process foregoes procedural due process in the amendment or revocation of public policy (MHCSS).
42 USCA §5402(b) All orders issued under this section shall be issued after notice and an opportunity for interested persons to participate are provided in accordance with the provisions of section 553 of title 5.
42 USCA §5403(e) The Secretary may by order amend or revoke any Federal manufactured home construction or safety standard established under this section. Such order shall specify the date on which such amendment or revocation is to take effect, which shall not be sooner than one hundred and eighty days or later than one year from the date the order is issued, unless the Secretary finds, for good cause shown, that an earlier or later date is in the public interest, and publishes his reasons for such finding.
Note: when Congress says, “publish his reasons” they are referring to he shall publish in the Federal Register.
The revocation or amendment of any MHCSS for whatever cause or purpose, including for the purpose of addressing an emergency (emphasis added), requires at a minimum that the Secretary publish in the Federal Register, why he believes that his decision is in the best interest of the public (emphasis added). By no reasonable measure can the activity cited in the AC process be deemed as an emergency.
Even if the Secretary argues that his revocation or suspension of Public Policy does not affect the public’s interest or “wherein no affirmative action is needed to protect the public interests” he is still procedurally bound by Public Law to publish in the Federal Register his reasoning “for such finding” [see endnote i].
Regardless of whether the Secretary’s approval of each AC letter pertains to one or ten thousand manufactured homes, such unlawfully promulgated approval respectively repeals some part or portion of the MHCSS (public policy) and, consequently repeals or suspends 42 USCA §5409(a)(1) for one or more manufactured homes covered under each such AC letter.
24 CFR 3282.14 beyond any reasonable doubt represents an amendment to 42 USCA §5409(a)(1), in so much as it provides the Secretary with alleged authority to authorize, that which he is otherwise expressly prohibited from doing under 42 USCA §5409(a)(1) (emphasis added). Upon the approval of each AC letter, 24 CFR 3282.14 has the effect of taking without due process, the primary right or entitlement of each purchaser of each such nonconforming manufactured home. This is paramount to a government taking – in the absence of due process – of the primary right/entitlement of the purchasers, as guaranteed by Public Law 93-383.
It may be argued that the purchaser has the right to give his or her informed consent to waive their primary right/entitlement; however, under the Secretary’s AC regulation no such consent is sought. Instead, a notice is given, which in the context prescribed in his regulation, is paramount to marketing propaganda aimed at alleviating any warranted reservations that a purchaser may, and should have, regarding the purchase of the manufacturer’s statutorily illegal manufactured home (24 CFR §3282.14(e)). The Secretary’s ‘Notice’ clearly takes an unfair advantage of the purchaser’s lack of knowledge regarding his or her rights under the MHCSS Act, to aid and abet the manufacturers in selling their statutorily illegal manufactured homes. It should also be noted that most often AC home purchasers do not receive the prescribed notice [2], and the Secretary does nothing to anyone who violates his regulatory requirement even when he knows of this violation.
Cleverly contrived contracts, warranties, etc., that had the effect of stripping purchasers of their rights under common law and other applicable law, were and still are common place in this industry. It was the kind of sinister activity that is the reason that the 93rd Congress did not give the purchaser or any person, including the Secretary, the right to forfeit or waive the purchaser’s rights under the MHCSS Act [3].
1
24
CFR 3282.14(a) “…the Department will permit the sale or
lease of one or more manufactured homes not in compliance with the
Standards…. Accordingly, HUD will permit manufacturers to
utilize new designs or techniques not in compliance with the
Standards in cases:
(1)
Where a manufacturer proposes to utilize construction that would
be prohibited by the Standards;
(2)
Where such construction would provide performance that is
equivalent to or superior to that required by the Standards; and
(3)
Where (i) compliance with the Standards would be unreasonable
because of the circumstances of the particular case, or (ii) the
alternative construction would be for purposes of research,
testing or development of new techniques or designs. If a
request for alternative construction is submitted and the facts are
consistent with these principles, the Secretary may issue a letter
under paragraph (c) of this section stating that no action will
be taken under the Act based upon specific failures to conform to
the Standards or these regulations, provided that certain
conditions are met.
2
The
refusal of all involved either to order the correction thereof, or
too adequately correct, if at all, the defects in an AC purchase
manufactured home usually leads to the purchaser’s discovery
that they purchased an experimental or AC manufactured home.
3
Finally,
and most fundamentally, the consumer's "right to
choose" is not a criterion for decision making under
the Manufactured Housing Act.” [United States Court of
Appeals, Eleventh Circuit, No. 94-2307, June 12, 1995].
i
By
incorporating due process into our constitution our founding fathers
sought to prevent the natural tendency of governments, as history
has proven to be always true, to conduct its business behind locked
doors or in secrecy, whenever operating against the interests of the
people. History has proven that such governmental behavior is like a
terminal disease that spreads through the whole body of government
until death. Voting in itself is simply not a sufficient check
against such abuse of power because as implied by secrecy, such
abuses are not open to public inspection, making their affect on
elections of little, to no consequence to the abuser(s).
In
one example of this truth, James Madison to Thomas Jefferson, [May
13, 1798] “The management of foreign relations appears to
be the most susceptible of abuse of all the trusts committed to
government, because they can be concealed or disclosed, or
disclosed in such parts and at such times as will best suit
particular views; and because the body of the people are
less capable of judging, and are more under the influence of
prejudices, on that branch of their affairs, than any other. Perhaps
it is a universal truth that the loss of liberty at home is to
be charged to provisions against danger, real or pretend,
from abroad.”