Stephen Lewarne (Franciscan University of Steubenville) has posted Administrative Substitution and the Constitution: Restoring Decision-Making at the Margin on SSRN. Here is the abstract:
The Constitution regulates who may exercise power and through what procedures, but it is largely silent on where government may intervene within ordinary decision processes. That silence has permitted systematic administrative substitution—the displacement of decentralized, consequence-bearing private choice with centralized administrative judgment. Unlike traditional regulation, which constrains conduct while preserving choice, administrative substitution replaces choice itself: administered prices for market discovery, licensing for entry, guarantees for risk-bearing, institutional assignment for family authority. The result is margin suppression—the elimination of decision points through which societies generate information, discipline error, and adapt to change. Using public education as a case study, this Article demonstrates how administrative substitution has displaced families from meaningful authority over their children’s schooling. Recent decisions rejecting Chevron deference restore judicial responsibility for statutory interpretation but do not address this structural problem. The Article concludes by proposing a constitutional amendment to restore decision-making margins while preserving regulation necessary to prevent direct and material harm.
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