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In the wake of the Administration's recent failures to get gun control legislation enacted, Executive Branch officials are utilizing a different mechanism: litigation. The government, specifically the Department of Housing and Urban Development (HUD), is organizing a class action lawsuit against gun makers by requesting federally-funded housing authorities take legal action. The goal is to achieve changes in the firearms industry that were not obtained through legislation.

Two interesting aspects about this taxpayer-funded organizing effort:

  1. HUD will not be a party to the lawsuit they are organizing. Instead, HUD is organizing federally-funded housing authorities to act as plaintiffs.

  2. As reported by The Washington Post, HUD apparently has little expectation of winning in court. Instead, the agency is seeking to force a pre-litigation settlement with gun manufacturers that would achieve the changes previously sought in legislation.

Regulation by Litigation: The HUD Example

Under the US Constitution, the Legislative Branch of government makes laws which then are implemented by the Executive Branch. The judiciary serves to impartially determine if a law or the Constitution has been violated. The HUD suit, however, would seek to use the judicial process not as an independent arbiter of the whether a law has been violated, but rather as a means to change how an industry conducts lawful business. This is the essence of Regulation by Litigation changing public policy without changing the law or implementing regulations.

The issue at the core of the HUD suit is not whether gun control laws should be strengthened (an issue on which The CRE takes no position). The real question is whether controversial public policy issues should be resolved through judicial rather than legislative processes.

The Washington Post is, and has long been, a vocal supporter of stronger gun control laws. However, the Post is sharply critical of the HUD suit even though it supports stringent gun control. In a December 17, 1999 editorial, "The HUD Gun Suit", the Post favors Congressional passage of new gun control legislation. However, they make clear, "That Congress has not been willing to do so is no license for the administration to use the courts as an alternative policymaking vehicle." [emphasis added]

With regard to HUD organizing a suit to which they are not a party, the Post editorial asks, "What business does the federal government have, if it is not willing to file a suit on behalf of the United States, ginning up surrogate plaintiffs with a clearer cause of action?" [emphasis added]

A New Role for the Courts?

The US legal system has traditionally served as a refuge for controversial or downright unpopular people and ideas. However, the role of the judicial system is at risk of being turned upside down. As the Post editorial states:

[I]t nonetheless seems wrong for an agency of the federal government to organize other plaintiffs to put pressure on an industry -- even a distasteful industry -- to achieve policy results the administration has not been able to achieve through normal legislation or regulation. It is an abuse of a valuable system, one that could make it less valuable as people come to view the legal system as nothing more than an arm of policymakers.

In attempting to quell gun violence in public housing, HUD may be changing the system of checks and balances between the Executive and Legislative branches of government.

Reponse From the Public on the HUD Gun Suit:

CRE has received the following public comment opposing the HUD Gun Suit. The Gun Suit is an effort by the Department of Housing and Urban Development to organize a class action lawsuit against gun makers. The organizing effort is aimed at using the judicial system to achieve changes in the firearms industry that were not obtained through legislation. CRE refers to the use of judicial system to achieve regulatory goals as Regulation by Litigation.

August 16, 2000

Is it appropriate for the Executive Branch to use firearms litigation to accomplish policy changes that could not achieved through legislation? No

Is Regulation by Litigation an issue in which you are interested? Yes

Is Regulation by Litigation a negative trend in controversial public policy issues? Yes

Please tell us your thoughts on Regulation by Litigation. (1000 word max.)
The lawsuits against gun makers are nothing more than a money grab for the failure to enforce existing law. Sarah Brady claims the Brady Act has stopped 500,000 purchases, although it's illegal for a felon to apply to buy a gun, less than 100 have been prosecuted. This allows criminals more time to get a gun on the black market. When Andrew Cuomo and the NY attorney general threaten gun makers to bankrupt their business if they don't sign an agreement, which will basically end their company, this is no longer America, no longer is it capitalism. I don't know what Cuomo's agenda is, but it's not freedom. If you'd like to see what the effects of gun control (and bans) will do to this country in terms of the costs of healthcare, please read I think we should sue Cuomo for his attempts in costing Americans billions of dollars through his litigation and the $935million in waste and fraud at HUD. If he did his job and wasn't trying to bypass Congress and the Constitution, Americans would be better off.

Feel free to contact me.