                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 19a0231p.06

                    UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT



 RICARDO TORRES,                                           ┐
                                    Plaintiff-Appellant,   │
                                                           │
                                                           >     No. 18-5850
        v.                                                 │
                                                           │
                                                           │
 PRECISION INDUSTRIES, INC.,                               │
                                   Defendant-Appellee.     │
                                                           ┘

                         Appeal from the United States District Court
                       for the Western District of Tennessee at Jackson.
                   No. 1:16-cv-01319—S. Thomas Anderson, District Judge.

                                     Argued: March 21, 2019

                               Decided and Filed: September 6, 2019

               Before: GRIFFIN, KETHLEDGE, and THAPAR, Circuit Judges.
                                  _________________

                                           COUNSEL

ARGUED: Steve Wilson, THE STEVE WILSON FIRM, Memphis, Tennessee, for Appellant.
James L. Holt, Jr., JACKSON, SHIELDS, YESIER & HOLT, Memphis, Tennessee, for
Appellee. ON BRIEF: Steve Wilson, THE STEVE WILSON FIRM, Memphis, Tennessee,
Bryce Ashby, DONATI LAW, PLLC, Memphis, Tennessee, for Appellant. James L. Holt, Jr.,
Paula J. Jackson, JACKSON, SHIELDS, YESIER & HOLT, Memphis, Tennessee, for Appellee.
Christopher Ho, Marisa Díaz, LEGAL AID AT WORK, San Francisco, California, for Amicus
Curiae.
                                       _________________

                                            OPINION
                                       _________________

       THAPAR, Circuit Judge.          Federal courts are not in the business of answering
hypothetical questions. Let alone hypothetical questions of constitutional law. In this case, the
 No. 18-5850                   Torres v. Precision Indus., Inc.                            Page 2


district court held that Tennessee law was preempted. But in doing so, the court skipped past the
question whether state law had been violated in the first place. Under well-established principles
of constitutional avoidance, we decline to address the hypothetical presented by this appeal.
Accordingly, we vacate the district court’s judgment.

       To understand our decision, one need only know the procedural history of this case.
In 2016, Ricardo Torres sued his former employer, Precision Industries, alleging that the
company had fired him for seeking benefits under Tennessee’s Workers’ Compensation Law.
Tenn. Code Ann. § 50-6-101 et seq. The district court held a bench trial, during which Precision
argued that it had not retaliated against Torres and that, even if it had, the Immigration Reform
and Control Act of 1986 preempted any remedy because Torres had not been authorized to work
in the United States. Pub. L. No. 99-603, 100 Stat. 3359. At the end of trial, the district court
granted judgment to Precision on the preemption ground without making any factual findings as
to the state law claim. We review that decision de novo. See Kehoe Component Sales Inc. v.
Best Lighting Prods., Inc., 796 F.3d 576, 585 (6th Cir. 2015).

       As usual in cases about preemption, we start with the Constitution. The Supremacy
Clause provides that “[the] Constitution, and the laws of the United States which shall be made
in Pursuance thereof . . . shall be the supreme Law of the Land . . . any Thing in the Constitution
or laws of any state to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. In theory, the
Clause may “only declare[] a truth, which flows immediately and necessarily from the institution
of a Federal Government.” The Federalist No. 33, at 207 (Alexander Hamilton) (J. Cooke ed.,
1961). But in practice, it supplies an important “rule of decision,” which instructs that courts
“must not give effect to state laws that conflict with federal laws.” Armstrong v. Exceptional
Child Ctr., Inc., 135 S. Ct. 1378, 1383 (2015). That rule has come to be known as the doctrine of
preemption.

       Over the years, the Supreme Court has constructed an elaborate preemption taxonomy:
express versus implied; field versus conflict; impossibility versus obstacle. See, e.g., Oneok, Inc.
v. Learjet, Inc., 135 S. Ct. 1591, 1595 (2015). Our decision, however, does not turn on any
specific category of preemption, so we can cut straight to the chase. The question (as presented
 No. 18-5850                   Torres v. Precision Indus., Inc.                            Page 3


by the parties) is whether the Immigration Reform and Control Act preempts Tennessee law to
the extent that state law provides unauthorized aliens with a remedy for retaliatory discharge.

       But here’s the problem: To answer that question, we would have to disregard several
fundamental principles of judicial restraint. Federal courts have long refused to decide abstract,
contingent, or hypothetical questions. Ala. State Fed’n of Labor v. McAdory, 325 U.S. 450, 461
(1945). Nor will they decide “questions of a constitutional nature unless absolutely necessary to
a decision of the case” or “formulate a rule of constitutional law broader than is required by the
precise facts to which it is to be applied.” Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347
(1936) (Brandeis, J., concurring) (internal quotation marks omitted).           These principles,
the Supreme Court has said, stem from the very limits on our power to decide cases
and controversies. U.S. Const. art. III, § 2; Rescue Army v. Mun. Court of L.A., 331 U.S. 549,
568–71 (1947). And they have since become “deeply rooted” in our constitutional tradition.
Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 105 (1944).

       More to the point, these principles apply as much to a question of preemption as to any
other question of constitutional law. Federal statutes do not preempt state law of their own force;
rather, they do so as a result of the Supremacy Clause. See, e.g., Hillsborough Cty. v. Automated
Med. Labs., Inc., 471 U.S. 707, 712 (1985); Caleb Nelson, Preemption, 86 Va. L. Rev. 225, 234
(2000). The Supreme Court has long recognized this fact. Almost two hundred years ago, the
Court described preemption as an “application” of the Supremacy Clause. Gibbons v. Ogden,
22 U.S. (9 Wheat.) 1, 211 (1824). And more recently, the Court reiterated that preemption
presents “the constitutional question” whether state and federal law “conflict.” Chi. & N.W.
Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317 (1981) (quoting Perez v. Campbell,
402 U.S. 637, 644 (1971)). Simply put, courts hold preempted laws “unconstitutional” under the
Supremacy Clause.      Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 388 (2000).
So courts should not address a question of preemption if they can resolve the case on other
grounds.

       That makes sense. The power to hold laws unconstitutional is one of “great gravity and
delicacy.” Ashwander, 297 U.S. at 345 (Brandeis, J., concurring) (internal quotation marks
omitted). No less so when courts question the “judgment” of state legislatures “concerning the
 No. 18-5850                        Torres v. Precision Indus., Inc.                                     Page 4


scope of their authority” under the Supremacy Clause. Rescue Army, 331 U.S. at 571; see also
3 Joseph Story, Commentaries on the Constitution of the United States § 441 (1st ed. 1833)
(discussing the “delicate” question of “how far in the exercise of a concurrent power, the actual
legislation of congress supersedes the state legislation”). For good reason, then, many of our
sister circuits have applied avoidance principles to questions of preemption. See, e.g., La. Health
Serv. & Indem. Co. v. Rapides Healthcare Sys., 461 F.3d 529, 532 & n.5 (5th Cir. 2006); Qwest
Corp. v. City of Santa Fe, 380 F.3d 1258, 1267 n.7 (10th Cir. 2004); Ehlis v. Shire Richwood,
Inc., 367 F.3d 1013, 1019 (8th Cir. 2004); BellSouth Telecomms., Inc. v. Town of Palm Beach,
252 F.3d 1169, 1176 (11th Cir. 2001); Bell Atl. Md., Inc. v. Prince George’s Cty., 212 F.3d 863,
865 (4th Cir. 2000).

        True, one circuit has taken a slightly different view. See N.J. Payphone Ass’n, Inc. v.
Town of West New York, 299 F.3d 235, 239 n.2 (3d Cir. 2002). But see id. at 248 (Alito, J.,
concurring in the judgment) (noting that he would affirm on different grounds since the court
should avoid the constitutional question of preemption).1 That circuit pointed out that the
Supreme Court has sometimes described preemption as primarily a question of statutory rather
than constitutional interpretation. See Swift & Co. v. Wickham, 382 U.S. 111, 120 (1965).
Of course, preemption cases require courts to engage in statutory interpretation. After all, a court
must know what each law says before it can decide whether they conflict. Perez, 402 U.S. at
644. But that doesn’t make preemption unique. Constitutional cases often turn on questions of
statutory interpretation.      See, e.g., United States v. Davis, 139 S. Ct. 2319, 2327 (2019)
(“So, while the consequences in this case may be of constitutional dimension, the real question
before us turns out to be one of pure statutory interpretation.”); Gundy v. United States, 139 S.
Ct. 2116, 2123 (2019) (plurality opinion) (“[A] nondelegation inquiry always begins (and often
almost ends) with statutory interpretation.”). And even as the Court described preemption as
primarily a question of statutory interpretation, it still made clear that the doctrine ultimately
“rest[s] on the Supremacy Clause of the Federal Constitution.” Swift, 382 U.S. at 125; see also



        1Truth  be told, this apparent circuit split may be illusory. See NUI Corp. v. Kimmelman, 765 F.2d 399, 403
(3d Cir. 1985) (applying constitutional avoidance to question of preemption); see also Deutscher Tennis Bund v.
ATP Tour Inc., 480 F. App’x 124, 126–27 (3d Cir. 2012) (per curiam) (same).
 No. 18-5850                    Torres v. Precision Indus., Inc.                            Page 5


Hagans v. Lavine, 415 U.S. 528, 533 n.5 (1974) (“[Swift] itself recognized [that a preemption
claim] cannot succeed without ultimate resort to the Federal Constitution . . . .”).

       The Supreme Court also treats preemption as “statutory” in the sense that it will decide a
preemption claim before addressing other constitutional issues in the case. Douglas v. Seacoast
Prods., Inc., 431 U.S. 265, 272 (1977) (internal quotation marks omitted). It does so because
Congress can override a preemption decision. See id. at 272 n.6. But again, the Court made
clear that preemption is “basically constitutional in nature, deriving its force from the operation
of the Supremacy Clause.” Id. at 272; see also Hagans, 415 U.S. at 549 (noting that, “although
denominated ‘statutory,’ [preemption] is in reality a constitutional claim arising under the
Supremacy Clause”). And that Congress can override a judicial decision does nothing to change
the decision’s constitutional basis. Cf. South Dakota v. Wayfair, Inc., 138 S. Ct. 2080, 2096–97
(2018); see also N.J. Payphone Ass’n, 299 F.3d at 249 (Alito, J., concurring in the judgment)
(noting that preemption “clear[ly]” presents “a constitutional issue” for purposes of
constitutional avoidance). Nor does the Court’s practice of deciding preemption claims before
other constitutional claims resolve whether courts should decide preemption claims before other
non-constitutional claims. In sum, courts should not decide a question of preemption if they can
resolve the case on non-constitutional grounds.

       As applied here, that principle is straightforward. The parties presented the district court
with at least two grounds for resolving this case. The court could find that Precision had not
retaliated against Torres in violation of Tennessee law. Or it could hold that federal law
preempted state law. After a full bench trial, the district court chose the latter, constitutional
ground. And in doing so, the district court erred. See, e.g., Schmidt v. Oakland Unified Sch.
Dist., 457 U.S. 594, 594–95 (1982) (per curiam); Miami Univ. Associated Student Gov’t v.
Shriver, 735 F.2d 201, 203–05 (6th Cir. 1984). Indeed, to hold otherwise would “require us to
resolve a constitutional question that may be entirely hypothetical” as applied to the facts of this
case. Ticor Title Ins. Co. v. Brown, 511 U.S. 117, 118 (1994) (per curiam).

       On remand, the district court should decide whether Precision violated Tennessee law.
If the answer is no, then neither the district court nor our court will need to address the question
presented by this appeal. If the answer is yes, however, then the district court will also have to
 No. 18-5850                    Torres v. Precision Indus., Inc.                           Page 6


determine the appropriate remedy. The court should decide what remedies are available under
Tennessee law before resolving whether federal law preempts any of those remedies.
That sequence will allow the district court to “formulate a rule of constitutional law [no] broader
than is required by the precise facts to which it is to be applied.” Ashwander, 297 U.S. at 347
(Brandeis, J., concurring) (internal quotation marks omitted). Constitutional avoidance requires
nothing less.

                                                ***

       We vacate the district court’s judgment and remand the case for further proceedings
consistent with this opinion.
