Cite as: 509 U. S. 1 (1993)
Blackmun, J., dissenting
on hypothetical Acts of Congress or dubious constitutional principles, an opinion that would be difficult to characterize as anything but advisory." United States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 U. S. 439, 447 (1993). See United States v. CIO, 335 U. S. 106, 126 (1948) (Frankfurter, J., concurring).
That the federal statutory and regulatory issues have not been properly briefed or argued does not justify the Court's decision to reach the constitutional claim. The very posture of this case should have alerted the courts that the parties were seeking what amounts to an advisory opinion. After the Arizona attorney general concluded that provision of a sign-language interpreter would violate the Federal and State Constitutions, the parties bypassed the federal statutes and regulations and proceeded directly to litigate the constitutional issue. Under such circumstances, the weighty nonconstitutional questions that were left unresolved are hardly to be described as "buried in the record." Ante, at 8. When federal- and state-law questions similarly remained open in Wheeler v. Barrera, 417 U. S. 402 (1974), this Court refused to pass upon the scope or constitutionality of a federal statute that might have required publicly employed teachers to provide remedial instruction on the premises of sectarian schools. Prudence counsels that the Court follow a similar practice here by vacating and remanding this case for consideration of the nonconstitutional questions, rather than proceeding directly to the merits of the constitutional claim. See Youakim v. Miller, 425 U. S. 231 (1976) (vacating and remanding for consideration of statutory issues not presented to or considered by lower court); Escambia County v. McMillan, 466 U. S. 48, 51-52 (1984) (vacating and remanding for lower court to consider statutory issue parties had not briefed and Court of Appeals had not passed upon); Edward J. DeBartolo Corp. v. NLRB, 463 U. S. 147, 157-158 (1983) (vacating and remanding for consideration of statutory question).
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