In late 1966, a young litigator left the Civil Aeronautics Board and later that year went to work for the Office of General Counsel in the newly formed Department of Housing and Urban Development (HUD). As he requested, he was assigned to the Legislation Division.
In 1967, he learned that HUD was charged with exploring how to impose safety standards on factory-built housing. Then as now, there existed factories all over the country that manufactured shelter components, assembling them to various stages, for transportation to sites for final assembly, or placement. A large fraction of such housing finds its market with families of slender means, especially rural families. The Legislation Division was involved because it was assumed that new program authority would be required, if HUD were to perform safety regulation. The closest thing that HUD had theretofore done was minimum standards for FHA insured housing.
For most legislation, the first step in the legislation development process is for policy makers to define a goal, then to see if legal authority exists to address the goal, and only then to formulate the additional legal authority that will be required to reach that goal. In an agency such as HUD, created by organic statute (Department of Housing and Urban Development Act, Pub. L. 89-174), some necessary authorities will already exist in generic form (e.g., the authority to issue implementing regulations) so that legislative authority for additional undertakings can be confined to specific policy goals.
In this case, the goal — safety regulation — was generally clear, although policy discussions most likely addressed unavoidable uncertainties; that is, questions such as whether the administering agency’s regulatory powers should reach manufacturers or sellers or resellers, whether there should be a threshold of value of parts or all the components, whether to address non-factory matters such as foundations or tie-downs, and so on.
Legislation formulated as a part of the policy development process does not ordinarily proceed as if it is to be written on a blank slate. Rather, knowing in general what the policy formulators are developing, the legislative draftsman will seek analogies, and whatever new authorities are required will then be drafted off existing enacted laws. The form and content of the existing law also act as a checklist for the new legislation.
Crafting a new authority so that it resembles existing laws helps provide answers to some legitimate questions that the legislature will have. These questions include: Is there legislative precedent? How long has such authority been on the books? Has the constitutionality been challenged, and with what result? What are the character of interests that will be affected? How much specificity is desirable in the legislation, and how much should be left to the implementing regulations? Drafting off an analogy will permit these and other questions to be addressed in a more informed manner. It is similar to the preference of experienced lawyers for “litigated language” — language that has been contested in court — in drafting contracts.
For manufactured homes safety regulation, HUD’s Legislative Division was at a loss for an analogy. But the new lawyer came up with one easily: safety regulation of air appliances. Why?
The existing staff members in the Legislation Division were world authorities on the laws of housing, finance, insurance, land use, takings, banking, safety and soundness regulation, economic development, and state and local government. The analogy, however, was drawn from the experience of the new, and junior lawyer, in transportation law, consumer protection, and economic regulation, topics with which HUD then had no experience. Moreover, to that point, the junior lawyer had been a litigator, not a legislative specialist.
The answer in this instance, of course, was fortuitous cross-pollination. There neither was nor is today any index or encyclopedia or other compilation that would have permitted HUD to have found that analogy, or perhaps any other.
The analogy was the authority of the Federal Aviation Agency to regulate aircraft, and components and appliances under section 603, Federal Aviation Act of 1958, originally codified at 49 U.S.C. 1423, which is an ancestor of the authority now codified at 49 U.S.C. 44702, -4.
The authority for the Manufactured Home Construction and Safety Standards program was in title VI, Housing and Community Development Act of 1974 (such gestation periods are not unusual), Pub. L. 93-383.
[More than a generation later, after substantial elaboration and recasting for codification, the two statutes are still similar!]
(Many thanks to “the young litigator” — KNiZ)