It is strongly implied by Congress in the MHCSS Act that the Secretary cannot sell his experimental or prototype manufactured homes to any purchaser under the guise of research and development, or for any reason whatsoever, if such do not comply with all applicable MHCSS (42 USCA §5407(a)(3) & (b)). The 93^rd Congress made this crystal clear in 42 USCA §5409(a) when they said, “No person shall …make use of any means of transportation or the mails to manufacture… or introduce or deliver”…“for sale, sell, offer for sale or lease,”…“any manufactured home which” “does not comply with such” MHCSS. A person who is prohibited from taking an action cannot condone or otherwise authorize another to take such an action.

Congress’s prohibition begins when the idea to manufacture a manufactured home is conceived, and continues in effect until Congress prescribes. Fundamentally, a person violates 42 USCA §5409(a)(1) if they knowingly engage in the design and/or manufacture of even one manufactured home that will not comply with all applicable MHCSS, if it is their intent that such a manufactured home will be delivered into commerce for sale, sell, offer for sale or lease to any purchaser.

Congress expressly states that there is only one condition that ends the force and effect of 42 USCA §5409(a)(1), and this is when the first person who purchases the “manufacturer’s manufactured home” (42 USCA §5413(g)(1)) “for purposes other than resale,” sales or offers for sale his or her manufactured home (42 USCA §5409(b)(1)). As discussed earlier, 42 USCA 5409(a)(1) gives rise to the purchasers primary right under the MHCSS Act, and as common sense dictates, a first purchaser cannot violate their own right. If permitted by the statute, which they are not (42 USCA §5421), they could elect to waive their right, but only someone else can violate their right.

It should be noted that there is no condition for the waiver of penalties for violation(s) of 42 USCA §5409(a)(2) – (6) (emphasis added), hence, even if the Secretary had prosecutorial discretion, he would have no discretion here to waive the penalties. The Secretary cured this problem by preempting all other systems of enforcement, including the MHCSS Act, with his “exclusive system of enforcement” for the MHCSS, wherein he has given himself absolute power for all matters whatsoever.

SHIFTING THE MANUFACTURERS LIABILITY ONTO OTHERS

42 USCA 5409(b)(2) provides that the penalties prescribed for violating 42 USCA §5409(a)(1) can be waived under specific circumstances, but this action is expressly limited to violations of 42 USCA §5409(a)(1) and completely silent thereunder unless guilt has been established or accepted by the defendant (emphasis added).

[1] to any person who, prior to such first purchase, holds a certificate issued by the manufacturer or importer of such manufactured home to the effect that such manufactured home conforms to all applicable Federal manufactured home construction and safety standards,

[2] unless such person knows that such manufactured home does not so conform.

Note: The subparagraph in Subsection §5409(b)(2) was divided into three parts herein to make it easier to see the different parts, and bracketed numbers have been placed at the beginning of two of the parts to correspond with two enumerated conditions in the Secretary’s prohibition of sale, which follows.

The Secretary must have felt that Congress (The People’s representatives) committed an egregious act against him and his manufacturers by lumping them in with the common people under 42 USCA §5409(a)(1). To correct this, the Secretary excluded his manufacturers from the Congress’s express prohibition by writing the following implementing regulation.

(1) There is affixed to the manufactured home a label certifying that the manufactured home conforms to applicable standards as required by Sec. 3282.205(c), and

(2) The distributor or dealer, acting as a reasonable distributor or dealer, does not know that the manufactured home does not conform to any applicable standards.

As noted, 42 USCA §5409(b)(2) above was divided into three parts to make it easier to see the effect of the Secretary’s contrived prohibition. Conditions (1) & (2) of subparagraph (a) of the Secretary’s prohibition are derived wholly from the second and third part (numbered above as [1] & [2]) of §5409(b)(2).

The difference between a prohibition against manufacture and a prohibition against sale may not sound significant, and it was intended to be misleading in this way. However, the Secretary’s version significantly weakens and narrows 42 USCA §5409(a)(1). He did this by taking a statutory prohibition that excluded “no person,” but at large applied only to the manufacturers of manufactured homes, and excluded the manufacturers all together (emphasis added).

He then took the conditions for waiving the penalties, but not the guilt, prescribed for violation of 42 USCA 5409(a)(1), and contrived them into a quasi statute of limitations for his prohibition. The Secretary accomplished this by:

Under the Secretary’s clearly contrived version of 42 USCA §5409(a)(1) in the same instant that the manufacturer places his or her label of compliance on the home, the Secretary’s “prohibition of sale” begins and ends (Emphasis Added). It is accurate to say that his prohibition is inapplicable to any manufactured home, because a manufactured home under the Secretary’s program is not labeled until it reaches the back door of the factory (are so it is alleged), and is no longer applicable once labeled by the manufacturer at the back door of the factory. Hence, his “prohibition of sale” is largely inapplicable to those whom sale, sell, offer for sale or lease, the manufacturer’s manufactured home – the dealers and distributors.

His mention of 42 USCA §5409(b)(1) in section (c) of his regulation is more meaningless misdirection. His prohibition was terminated by the manufacturer (at the back door of the factory) long before it could reasonably have any affect on any purchaser, and it CANNOT EVER be revived under his regulations for any cause or reason once such manufactured home has been delivered to the purchaser (in good faith for purposes other than resale).

As constructed, the Secretary’s regulatory prohibition is not designed to prohibit the sale of such noncompliant or statutorily illegal manufactured homes, but to protect the provision(s) of any contracts for statutorily illegal manufactured homes that have been sold to purchasers.

42 USCA §5421 expressly states that any provision(s) of a contract or agreement for the sale of such a nonconforming or statutorily illegal manufactured home is void, in so much as the purchaser has the Federal right to a new home without such defect(s). This makes way for such provision of a contract to be voided by the State Courts [1], should the manufacturer fail to completely remove the nonconformance(s) or bring the manufactured home into compliance with the MHCSS, in accordance with 42 USCA §5414 .

A State’s approval under 42 USCA §5422 is predicated upon the adoption of procedures established by Congress in 42 USCA §5414. The States’ continued good standing under 42 USCA §5422 is predicated upon ensuring that the procedures under 42 USCA §5414 are complied with by the manufacturers, and this is therefore a duty owed by the State. In States with no such approval, the responsibility for ensuring that the procedures set forth by Congress under 42 USCA §5414 are complied with, is a duty owed by the Secretary. However, given that such contracts are formed under the jurisdiction of the State, the State Courts would have direct jurisdiction to enforce 42 USCA §5421 regardless of whether a State was approved under 42 USCA §5422.

As stated in 42 USCA §5414, a manufacturer’s compliance with 42 USCA §5414 does not terminate the purchaser’s rights under any contract or applicable law (42 USCA §5414(g)).

1
Under our constitutional scheme, federal courts were not designed as the only protectors of federal rights. Article VI, cl. 2 expressly directs that the 'Constitution, and the laws of the United States . . . shall be the supreme Law of the Land; and Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’ Thus '[s]tate courts are bound equally with the federal courts' to protect federal rights. Public Service Comm'n v. Wycoff Co. 344 U.S. 237, 247 (1952). The decisions of this Court are to guide state courts in the exercise of this duty.” (Karlan v. City of Cincinnati, 416 U.S. 924, (1974), U.S. S. Ct.)