S056265, Opinion — Emerald Steel Fabricators, Inc. v. BOLI

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Argued and submitted March 6, 2009, at University of Oregon School of Law,
Eugene, decision of Court of Appeals and revised order on reconsideration of
Commissioner of Bureau of Labor and Industries reversed April 15, 2010

EMERALD STEEL FABRICATORS, INC.,
Petitioner on Review,
v.
BUREAU OF LABOR AND INDUSTRIES,
Respondent on Review.
(BOLI 3004; CA A130422; SC S056265)
230 P3d 518

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# En Banc

On review from the Court of Appeals .*

Terence J. Hammons, of Hammons & Mills, Eugene,
argued the cause and filed the brief for petitioner on review.

Janet A. Metcalf, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on review.
With her on the brief were John R. Kroger, Attorney General,
and Erika L. Hadlock, Acting Solicitor General.

Paula A. Barran, of Barran Liebman LLP, Portland, filed
the brief for amicus curiae Associated Oregon Industries.

James N. Westwood, of Stoel Rives LLP, Portland, filed
the brief for amici curiae Pacific Legal Foundation and
National Federation of Independent Business. With him on
the brief was Deborah J. La Fetra.

KISTLER, J.

The decision of the Court of Appeals and the revised order
on reconsideration of the Commissioner of the Bureau of
Labor and Industries are reversed.

Walters, J., dissented and filed an opinion, in which
Durham, J., joined.

\* On judicial review from Revised Order on Reconsideration dated July 13,
2006, of the Bureau of Labor and Industries. 220 Or App 423, 186 P3d 300 (2008).

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# KISTLER, J.

The Oregon Medical Marijuana Act authorizes per-
sons holding a registry identification card to use marijuana
for medical purposes. ORS 475.306(1). It also exempts those
persons from state criminal liability for manufacturing,
delivering, and possessing marijuana, provided that certain
conditions are met. ORS 475.309(1). The Federal Controlled
Substances Act, 21 USC § 801 et seq., prohibits the manufac-
ture, distribution, dispensation, and possession of marijuana
even when state law authorizes its use to treat medical con-
ditions. Gonzales v. Raich, 545 US 1, 29, 125 S Ct 2195, 162
L Ed 2d 1 (2005); see United States v. Oakland Cannabis
Buyers' Cooperative, 532 US 483, 486, 121 S Ct 1711, 149
L Ed 2d 722 (2001) (holding that there is no medical necessity
exception to the federal prohibition against manufacturing
and distributing marijuana).

The question that this case poses is how those state
and federal laws intersect in the context of an employment
discrimination claim; specifically, employer argues that,
because marijuana possession is unlawful under federal law,
even when used for medical purposes, state law does not
require an employer to accommodate an employee's use of
marijuana to treat a disabling medical condition. The Court
of Appeals declined to reach that question, reasoning that
employer had not preserved it. Emerald Steel Fabricators,
Inc. v. BOLI, 220 Or App 423, 186 P3d 300 (2008). We
allowed employer's petition for review and hold initially that
employer preserved the question that it sought to raise in the
Court of Appeals. We also hold that, under Oregon's employ-
ment discrimination laws, employer was not required to
accommodate employee's use of medical marijuana. Accord-
ingly, we reverse the Court of Appeals decision.

Since 1992, employee has experienced anxiety, panic
attacks, nausea, vomiting, and severe stomach cramps, all of
which have substantially limited his ability to eat. Between
January 1996 and November 2001, employee used a variety
of prescription drugs in an attempt to alleviate that condi-
tion. None of those drugs proved effective for an extended
period of time, and some had negative effects. In 1996,

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employee began using marijuana to self-medicate his
condition.

In April 2002, employee consulted with a physician
for the purpose of obtaining a registry identification card
under the Oregon Medical Marijuana Act. The physician
signed a statement that employee has a "debilitating medical
condition" and that "[m]arijuana may mitigate the symptoms
or effects of this patient's condition." The statement added,
however, "This is not a prescription for the use of medical
marijuana." The statement that employee's physician signed
tracks the terms of the Oregon Medical Marijuana Act. That
act directs the state to issue registry identification cards to
persons when a physician states that "the person has been
diagnosed with a debilitating medical condition and that the
medical use of marijuana may mitigate the symptoms or
effects" of that condition. ORS 475.309(2).1 No prescription is
required as a prerequisite for obtaining a registry identifica-
tion card. See id.

Based on the physician's statement, employee
obtained a registry identification card in June 2002, which he
renewed in 2003.2 That card authorized employee to "engage
in * * * the medical use of marijuana" subject to certain
restrictions. ORS 475.306(1). Possession of the card also
exempted him from state criminal prosecution for the posses-
sion, distribution, and manufacture of marijuana, provided
that he met certain conditions. ORS 475.309(1).

Employer manufactures steel products. In January
2003, employer hired employee on a temporary basis as a
drill press operator. While working for employer, employee
used medical marijuana one to three times per day, although
not at work. Employee's work was satisfactory, and employer
was considering hiring him on a permanent basis. Knowing

1 The 2001 version of the applicable statutes was in effect at the time of the
events that gave rise to this proceeding. Since 2001, the legislature has amended
those statutes but not in ways that affect our decision, and we have cited to the
2009 version of the statutes.

2 ORS 475.309(7)(a)(C) requires a person possessing a registry identification
card to submit annually "[u]pdated written documentation from the cardholder's
attending physician of the person's debilitating medical condition and that the
medical use of marijuana may mitigate the symptoms or effects" of that condition.
If the person fails to do so, the card "shall be deemed expired." ORS 475.309(7)(b).

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that he would have to pass a drug test as a condition of per-
manent employment, employee told his supervisor that he
had a registry identification card and that he used marijuana
for a medical problem; he also showed his supervisor docu-
mentation from his physician. In response to a question from
his supervisor, employee said that he had tried other medi-
cations but that marijuana was the most effective way to
treat his condition. Neither employee's supervisor nor any-
one else in management engaged in any other discussion
with employee regarding alternative treatments for his con-
dition. One week later, the supervisor discharged employee.

Two months later, employee filed a complaint with
the Bureau of Labor and Industries (BOLI), alleging that
employer had discriminated against him in violation of ORS
659A.112. That statute prohibits discrimination against an
otherwise qualified person because of a disability and
requires, among other things, that employers "make reason-
able accommodation" for a person's disability unless doing so
would impose an undue hardship on the employer. ORS
659A.112(2)(e). Having investigated employee's complaint,
BOLI filed formal charges against employer, alleging that
employer had discharged employee because of his disability
in violation of ORS 659A.112(2)(c) and (g) and that employer
had failed to reasonably accommodate employee's disability
in violation of ORS 659A.112(2)(e) and (f). Employer filed an
answer and raised seven affirmative defenses.

After hearing the parties' evidence, an administra-
tive law judge (ALJ) issued a proposed order in which he
found that employee was a disabled person within the mean-
ing of ORS chapter 659A but that employer had not dis-
charged employee because of his disability. The ALJ found
instead that employer had discharged employee because he
used marijuana and ruled that discharging employee for that
reason did not violate ORS 659A.112(2)(c) or (g). The ALJ
went on to rule, however, that employer had violated ORS
659A.112(2)(e) and (f), which prohibit an employer from fail-
ing to reasonably accommodate the "known physical or men-
tal limitations of an otherwise qualified disabled person," and
from denying employment opportunities to an otherwise

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qualified disabled person when the denial is based on the fail-
ure "to make reasonable accommodation to the physical or
mental impairments of the employee."

Among other things, the ALJ ruled that employer's
failure to engage in a "meaningful interactive process" with
employee, standing alone, violated the obligation set out in
ORS 659A.112(2)(e) and (f) to reasonably accommodate
employee's disability. The ALJ also found that employee had
suffered damages as a result of those violations, and the com-
missioner of BOLI issued a final order that adopted the ALJ's
findings in that regard.

Employer sought review of the commissioner's order
in the Court of Appeals. As we understand employer's argu-
ment in the Court of Appeals, it ran as follows: Oregon law
requires that ORS 659A.112 be interpreted consistently with
the federal Americans with Disabilities Act (ADA), 42 USC
§ 12111 et seq. Section 12114(a) of the ADA provides that the
protections of the ADA do not apply to persons who are cur-
rently engaged in the illegal use of drugs, and the federal
Controlled Substances Act prohibits the possession of mari-
juana without regard to whether it is used for medicinal pur-
poses. It follows, employer reasoned, that the ADA does not
apply to persons who are currently engaged in the use of
medical marijuana. Like the ADA, ORS 659A.124 provides
that the protections of ORS 659A. 112 do not apply to persons
who are currently engaged in the illegal use of drugs.
Employer reasoned that, if ORS 659A.112 is interpreted con-
sistently with the ADA, then ORS 659A.112 also does not
apply to persons who are currently engaged in medical mari-
juana use. Employer added that, in any event, the United
States Supreme Court's opinion in Raich and the Supremacy
Clause required that interpretation.

The Court of Appeals did not reach the merits of
employer's argument. It concluded that employer had not
presented that argument to the agency and thus had not pre-
served it. Accordingly, we begin with the question whether
employer preserved the issues before BOLI that it sought to
raise in the Court of Appeals.

Employer raised seven affirmative defenses in
response to BOLI's complaint. The fifth affirmative defense
alleged:

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"Oregon law prescribes that ORS 659A.112 be con-
strued to the extent possible in a manner that is consistent
with any similar provisions of the Federal Americans with
Disabilities Act of 1990, as amended. That Act does not per-
mit the use of marijuana because marijuana is an illegal
drug under Federal Law."

That affirmative defense is broad enough to encompass the
argument that employer made in the Court of Appeals. To be
sure, employer's fifth affirmative defense does not refer spe-
cifically to ORS 659A.124. However, it alleges that the ADA
does not apply to persons who use marijuana, a proposition
that necessarily depends on both 42 USC § 12114(a), the fed-
eral counterpart to ORS 659A.124, and the Controlled
Substances Act. And the fifth affirmative defense also states
that ORS 659A.112 should be construed in the same manner
as the ADA. Although employer could have been more spe-
cific, its fifth affirmative defense is sufficient to raise the stat-
utory issue that it sought to argue in the Court of Appeals.3

Ordinarily, we would expect that employer would
have developed the legal arguments in support of its fifth
affirmative defense more fully at the agency hearing. How-
ever, the Court of Appeals issued its decision in Washburn v.
Columbia Forest Products, Inc., 197 Or App 104, 104 P3d 609
(2005), two weeks before the hearing in this case, and
employer concluded that the reasoning in Washburn fore-
closed its fifth affirmative defense. The Court of Appeals held
in Washburn that an employer's failure to accommodate an
employee's use of medical marijuana violated ORS 659A.112.
In reaching that holding, the Court of Appeals decided two
propositions that bore on the validity of employer's fifth affir-
mative defense. First, it reasoned that the requirement in
ORS 659A.139 to interpret ORS 659A.112 consistently with
the ADA does not require absolute symmetry between state
and federal law. Id. at 109-10. Second, it held that, as a mat-
ter of state law, the employee's medical use of marijuana was
"not unlawful" for the purposes of a federal statute that pro-
hibits the use of illegal drugs in the workplace. Id. at 114-15.
The court noted that the question "[w]hether medical use of
marijuana is unlawful under federal law is an open question"

3 BOLI points to nothing in its rules that suggests that more specificity was
required. Cf. OAR 839-050-0130 (providing only that affirmative defenses must be
raised or waived).

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and that the United States Supreme Court had granted the
government's petition for certiorari in Raich to decide that
question. Id. at 115 n 8.

At the hearing in this case, employer told the ALJ
that five of its affirmative defenses (including the fifth affir-
mative defense) were "foreclosed by the Washburn decision"
but that it was "not withdrawing them." Employer did not
explain the basis for that position. We note, however, that the
Court of Appeals' conclusion in Washburn that ORS
659A.139 does not require absolute symmetry between the
state and federal antidiscrimination statutes and its conclu-
sion that medical marijuana use is "not unlawful" under
state law effectively foreclosed reliance on ORS 659A.139 and
ORS 659A.124 as a basis for employer's fifth affirmative
defense. There would be little point in arguing before the ALJ
that employee was currently engaged in the illegal use of
drugs if, as the Court of Appeals had just stated in Washburn,
the use of medical marijuana is not illegal.4 The ALJ issued a
proposed order in which it ruled that the Court of Appeals
decision in Washburn controlled, among other things,
employer's fifth affirmative defense.

After the ALJ filed his proposed order, the United
States Supreme Court issued its decision in Raich and held
that Congress had acted within its authority under the
Commerce Clause in prohibiting the possession, manufac-
ture, and distribution of marijuana even when state law
authorizes its use for medical purposes. 545 US at 33. Raich
addressed the question that the Court of Appeals had
described in Washburn as open-whether using marijuana,
even for medical purposes, is unlawful under federal law.
Employer filed a supplemental exception based on Raich and
alternatively a request to reopen the record to consider
Raich. Employer argued that, as a result of Raich, "states
may not authorize the use of marijuana for medicinal
purposes" and that "[t]he impact of this decision is that

4 To be sure, the Court of Appeals reserved the question in Washburn whether
the use of medical marijuana is unlawful under federal law, but that did not detain
it from holding that the employer in that case had an obligation under ORS
659A.112 to accommodate the employee's use of medical marijuana. Given
Washburn's holding, employer reasonably conceded its controlling effect until, as
noted below, the Supreme Court issued its decision in Raich.

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[employer] should prevail on its Fourth and Fifth Affirmative
Defenses."

BOLI responded that the ALJ should not reopen the
record. It reasoned that Raich did not invalidate Oregon's
medical marijuana law and that, in any event, employer
could have raised a preemption argument before the Court
issued its decision in Raich. Employer replied that, as it read
Raich, the "Supreme Court has ruled that legalization of
marijuana is preempted by federal law. This obviously inval-
idates the Oregon Medical Marijuana Act." Employer also
explained that it had raised this issue in its fourth and fifth
affirmative defenses, which "recite[d] that marijuana is an
illegal drug under federal law, and that state law deferred to
federal law." After considering the parties' arguments, the
ALJ allowed employer's motion to reopen the record, stating
that "[t]he forum will consider the Supreme Court's ruling
in Raich to the extent that it is relevant to [employer's]
case." Later, the Commissioner ruled that the Controlled
Substances Act, which was at issue in Raich, did not preempt
the Oregon Medical Marijuana Act.

As we read the record, employer took the position
before the agency that, like the protections of the federal
ADA, the protections of ORS 659A.112 do not apply to a per-
son engaged in the use of illegal drugs, a phrase that, as a
result of controlling federal law, includes the use of medical
marijuana. We conclude that employer's arguments were
sufficient to preserve the issue that it sought to raise on judi-
cial review in the Court of Appeals. To be sure, employer's
fifth affirmative defense, as pleaded, turned solely on a ques-
tion of statutory interpretation. Employer did not raise the
preemption issue or argue that federal law required a partic-
ular reading of Oregon's statutes until employer asked the
ALJ to reopen the record to consider Raich. Perhaps the ALJ
could have declined to reopen the record. However, once the
ALJ chose to reopen the record and the Commissioner chose
to address employer's preemption arguments based on
Raich, then employer's federal preemption arguments were
also properly before the agency.5

5 After the Commissioner issued his final order in this case, this court reversed
the Court of Appeals decision in Washburn. Washburn v. Columbia Forest

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As noted, the Court of Appeals reached a different
conclusion regarding preservation, and we address its rea-
soning briefly. The Court of Appeals reasoned that, in telling
the ALJ that Washburn foreclosed its affirmative defenses,
employer adopted the specific defenses that the employer in
Washburn had asserted and that employer was now limited
to those defenses. 220 Or App at 437. The difficulty, the Court
of Appeals explained, was that the statutory issues that
employer had raised in its affirmative defenses and sought to
raise on judicial review differed from the issues that the
employer had raised in Washburn. Id.

In our view, the Court of Appeals misperceived the
import of what employer told the ALJ. Employer reasonably
acknowledged that the reasoning in Washburn controlled the
related but separate defenses that it was raising in this case.
Employer did not say that it was advancing the same issues
that the employer had asserted in Washburn, and the Court
of Appeals erred in holding otherwise.

The Court of Appeals also concluded that employer
had not preserved its argument regarding the preemptive
effect of the Controlled Substances Act, as interpreted in
Raich. Emerald Steel, 220 Or App at 437-38. It noted that, on
judicial review, employer argued that federal law required its
interpretation of Oregon's antidiscrimination statutes while
it had argued before the agency that federal law preempted
the Oregon Medical Marijuana Act. Id. We read the record
differently. As explained above, employer made both argu-
ments before the agency.6

Products, Inc., 340 Or 469, 480, 134 P3d 161 (2006). This court held that the
employee in Washburn was not a disabled person within the meaning of ORS chap-
ter 659A. Id. at 479. Given that holding, this court did not reach the other issues
that the Court of Appeals had addressed in Washburn. After this court's decision in
Washburn, the commissioner withdrew the final order and issued a revised order
on reconsideration, adhering to his earlier resolution of employer's affirmative
defenses in this case.

" As noted, employer moved to reopen the record on the ground that, as a result
of Raich, "states may not authorize the use of marijuana for medicinal purposes"
and that "[t]he impact of this decision is that [employer] should prevail on its
Fourth and Fifth Affirmative Defenses." Employer thus told the agency that the
Controlled Substances Act, as interpreted in Raich, compelled its interpretation of
Oregon's antidiscrimination statutes. Additionally, in response to BOLI's argu-
ments, employer contended that the Controlled Substances Act preempted the
Oregon Medical Marijuana Act.

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Having concluded that employer preserved the
issues it sought to raise on judicial review, we turn to the
merits of those issues." Employer's statutory argument
begins with ORS 659A.124(1), which provides that "the pro-
tections of ORS 659A.112 do not apply to any * * * employee
who is currently engaging in the illegal use of drugs if the
employer takes action based on that conduct."8 It follows,
employer reasons, that it had no obligation under ORS
659A.112(2)(e) and (f) to reasonably accommodate employee's
medical marijuana use. In responding to that argument on
the merits, BOLI does not dispute that employee was cur-
rently engaged in the use of medical marijuana, nor does it
dispute that employer discharged employee for that reason.
Rather, BOLI advances two arguments why ORS 659A.124
does not support employer's position.

As we understand BOLI's first argument, it contends
that, because the commissioner found that employer had vio-
lated ORS 659A.112(2)(e) and (f) by failing to engage in a
"meaningful interactive process," ORS 659A.124 is inappo-
site. We reach precisely the opposite conclusion. The commis-
sioner explained that engaging in a "meaningful inter-
active process" is the "mandatory first step in the process of
reasonable accommodation" that ORS 659A.112(2)(e) and (f)
require. However, ORS 659A.124 provides that "the protec-
tions of ORS 659A.112 do not apply" to an employee who is
currently engaged in the illegal use of drugs, if the employer

7 We note that both California and Washington have considered whether their
state medical marijuana laws give medical marijuana users either a claim under
California's fair employment law or an implied right of action under Washington
law against an employer that discharges or refuses to hire a person for off-work
medical marijuana use. See Roe v. Teletech Customer Care Management, 152 Wash
App 388, 216 P3d 1055 (2009); Ross v. Ragingwire Telecommunications, Inc., 42
Cal 4th 920, 174 P3d 200 (2008). Both the California and Washington courts have
held that, in enacting their states' medical marijuana laws, the voters did not
intend to affect an employer's ability to take adverse employment actions based on
the use of medical marijuana. Roe, 216 P3d at 1058-61; Ross, 174 P3d at 204.
Accordingly, in both Washington and California, employers do not have to accom-
modate their employees' off-site medical marijuana use. We reach the same conclu-
sion, although our analysis differs because Oregon has chosen to write its laws
differently.

: ORS 659A.124 lists exceptions to that rule, none of which applies here. See
ORS 659A.124(2) (recognizing exceptions for persons who either are participating
in or have successfully completed a supervised drug rehabilitation program and
are no longer engaging in the illegal use of drugs).

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takes an adverse action based on that use. Under the plain
terms of ORS 659A.124, if medical marijuana use is an illegal
use of drugs within the meaning of ORS 659A.124, then ORS
659A.124 excused employer from whatever obligation it
would have had under ORS 659A.112 to engage in a "mean-
ingful interactive process" or otherwise accommodate
employee's use of medical marijuana.

BOLI advances a second, alternative argument. It
argues that "employee's use of medical marijuana was
entirely legal under state law" and thus not an "illegal use of
drugs" within the meaning of ORS 659A.124. BOLI recog-
nizes, as it must, that the federal Controlled Substances Act
prohibits possession of marijuana even when used for medi-
cal purposes. BOLI's argument rests on the assumption that
the phrase "illegal use of drugs" in ORS 659A.124 does not
include uses that are legal under state law even though those
same uses are illegal as a matter of federal law. BOLI never
identifies the basis for that assumption; however, a state
statute defines the phrase "illegal use of drugs," as used in
ORS 659A.124, and we turn to that statute for guidance in
resolving BOLI's second argument.

ORS 659A.122 provides, in part:

"As used in this section and ORS 659A.124, 659A.127
and 659A.130:

***** *

"(2) 'Illegal use of drugs' means any use of drugs, the
possession or distribution of which is unlawful under state
law or under the federal Controlled Substances Act, 21
U.S.C.A. 812, as amended, but does not include the use of a
drug taken under supervision of a licensed health care pro-
fessional, or other uses authorized under the Controlled
Substances Act or under other provisions of state or federal
law."9

The definition of "illegal use of drugs" divides into two parts.
The first part defines the drugs that are included within the
definition-all drugs whose use or possession is unlawful
under state or federal law. Marijuana clearly falls within the

9 Before 2009, former ORS 659A.100(4) (2001) defined the phrase "illegal use of
drugs." In 2009, the legislature renumbered that definition as ORS 659A.122(2).

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first part of the definition. The second part of the definition
excludes certain uses of what would otherwise be an illegal
use of a drug. Two exclusions are potentially applicable here:
(1) the exclusion for "uses authorized under * * * other pro-
visions of state * * * law" and (2) the exclusion for "the use of
a drug taken under supervision of a licensed health care pro-
fessional." We consider each exclusion in turn.

We begin with the question whether employee's use
of medical marijuana is a "us[e] authorized under * * * other
provisions of state * * * law." We conclude that, as a matter of
statutory interpretation, it is an authorized use. The Oregon
Medical Marijuana Act affirmatively authorizes the use of
medical marijuana, in addition to exempting its use from
state criminal liability. Specifically, ORS 475.306(1) provides
that "[a] person who possesses a registry identification card
\* \* \* may engage in * * * the medical use of marijuana" sub-
ject to certain restrictions. ORS 475.302(10), in turn, defines
a registry identification card as "a document * * * that iden-
tifies a person authorized to engage in the medical use of
marijuana." Reading those two subsections together, we con-
clude that ORS 475.306(1) affirmatively authorizes the use of
marijuana for medical purposes10 and, as a statutory matter,
brings the use of medical marijuana within one of the exclu-
sions from the "illegal use of drugs" in ORS 659A.122(2).11

1º The ballot title for the Oregon Medical Marijuana Act confirms that inter-
pretation of the act. See State v. Gaines, 346 Or 160, 172, 206 P3d 1042 (2009) (look-
ing to legislative history to confirm text). The caption, "yes" vote result statement,
and summary of the ballot title focused on the fact that the measure, if enacted,
would allow permit-holders to use medical marijuana and referred to the exemp-
tion from criminal laws only at the end of the summary. Official Voters' Pamphlet,
Nov 3, 1998, 148. The caption stated that the measure "[a]llows medical use of
marijuana within limits; establishes permit system." The "yes" vote result state-
ment was to the same effect, and the summary stated that current law prohibits
the possession and manufacture of marijuana but that the measure "allows engag-
ing in, assisting in, medical use of marijuana." Id. Only at the end of the summary
did the ballot title add that the measure "excepts permit holder or applicant from
marijuana criminal statutes." Id.

11 The Oregon Medical Marijuana Act also exempts medical marijuana use
from state criminal liability. See ORS 475.309(1) (excepting persons holding regis-
try identification cards from certain state criminal prohibitions); ORS 475.319 (cre-
ating an affirmative defense to certain criminal prohibitions for persons who do not
hold registry identification cards but who have complied with the conditions nec-
essary to obtain one). Because ORS 659A.122(2) excludes from the definition of ille-
gal use of drugs only those uses authorized by state law, the provisions of the
Oregon Medical Marijuana Act that are relevant here are those provisions that

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Employer argues, however, that the Supremacy
Clause of the United States Constitution requires that we
interpret Oregon's statutes consistently with the federal
Controlled Substances Act. We understand employer's point
to be that, to the extent that ORS 475.306(1) affirmatively
authorizes the use of medical marijuana, federal law pre-
empts that subsection and that, without any effective state
law authorizing the use of medical marijuana, employee's use
of that drug was an "illegal use of drugs" within the meaning
of ORS 659A.124.12 We turn to that question and begin by
setting out the general principles that govern preemption.
We then discuss the federal Controlled Substances Act and
finally turn to whether the Controlled Substances Act pre-
empts the Oregon Medical Marijuana Act to the extent that
state law affirmatively authorizes the use of medical
marijuana.

The United States Supreme Court recently summa-
rized the general principles governing preemption:

"Our inquiry into the scope of a statute's pre-emptive
effect is guided by the rule that ' "[t]he purpose of Congress
is the ultimate touchstone" in every pre-emption case.'
Medtronic, Inc. v. Lohr, 518 US 470, 485, 116 S Ct 2240, 135
L Ed 2d 700 (1996) (quoting Retail Clerks v. Schermerhorn,
375 US 96, 103, 84 S Ct 219, 11 L Ed 2d 179 (1963)).
Congress may indicate a pre-emptive intent through a stat-
ute's express language or through its structure and pur-
pose. See Jones v. Rath Packing Co., 430 US 519, 525, 97
S Ct 1305, 51 L Ed 2d 604 (1977). * * * Pre-emptive intent
may also be inferred if the scope of the statute indicates
that Congress intended federal law to occupy the legislative
field, or if there is an actual conflict between state and

affirmatively authorize the use of medical marijuana, as opposed to those provi-
sions that exempt its use from criminal liability.

12 The only issue that employer's preemption argument raises is whether fed-
eral law preempts ORS 475.306(1) to the extent that it authorizes the use of medi-
cal marijuana. In holding that federal law does preempt that subsection, we do not
hold that federal law preempts the other sections of the Oregon Medical Marijuana
Act that exempt medical marijuana use from criminal liability. We also express no
opinion on the question whether the legislature, if it chose to do so and worded
Oregon's disability law differently, could require employers to reasonably accom-
modate disabled employees who use medical marijuana to treat their disability.
Rather, our opinion arises from and is limited to the laws that the Oregon legisla-
ture has enacted.

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federal law. Freightliner Corp. v. Myrick, 514 US 280, 287,
115 S Ct 1483, 131 L Ed 2d 385 (1995).

"When addressing questions of express or implied pre-
emption, we begin our analysis 'with the assumption that
the historic police powers of the States [are] not to be super-
seded by the Federal Act unless that was the clear and
manifest purpose of Congress.' Rice v. Santa Fe Elevator
Corp., 331 US 218, 230, 67 S Ct 1146, 91 L Ed 1447 (1947)."

Altria Group, Inc. v. Good, 555 US 70, _, 129 S Ct 538,
543, 172 L Ed 2d 398 (2008).

With those principles in mind, we turn to the
Controlled Substances Act. The central objectives of that act
"were to conquer drug abuse and to control the legitimate and
illegitimate traffic in controlled substances. Congress was
particularly concerned with the need to prevent the diversion
of drugs from legitimate to illicit channels." Raich, 545 US at
12-13 (footnotes omitted). To accomplish those objectives,
Congress created a comprehensive, closed regulatory regime
that criminalizes the unauthorized manufacture, distribu-
tion, dispensation, and possession of controlled substances
classified in five schedules. Id. at 13.

The Court has explained that:

"Schedule I drugs are categorized as such because of their
high potential for abuse, lack of any accepted medical use,
and absence of any accepted safety for use in medically
supervised treatment. [21 USC] § 812(b)(1). These three
factors, in varying gradations, are also used to categorize
drugs in the other four schedules. For example, Schedule II
substances also have a high potential for abuse which may
lead to severe psychological or physical dependence, but
unlike Schedule I drugs, they have a currently accepted
medical use. [21 USC] § 812(b)."

Id. at 14. Consistent with Congress's determination that the
controlled substances listed in Schedule II through V have
currently accepted medical uses, the Controlled Substances
Act authorizes physicians to prescribe those substances for
medical use, provided that they do so within the bounds of
professional practice. See United States v. Moore, 423 US 122,
142-43, 96 S Ct 335, 46 L Ed 2d 333 (1975).13 By contrast,

13 Two subsections of the Controlled Substances Act accomplish that result.
Section 823(f) directs the Attorney General to register physicians and other

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because Schedule I controlled substances lack any accepted
medical use, federal law prohibits all use of those drugs "with
the sole exception being use of [Schedule I] drug[s] as part of
a Food and Drug Administration preapproved research pro-
ject." Raich, 545 US at 14; see 21 USC § 823(f) (recognizing
that exception for the use of Schedule I drugs).

Congress has classified marijuana as a Schedule I
drug, 21 USC § 812(c), and federal law prohibits its manufac-
ture, distribution, and possession, 21 USC § 841(a)(1). Cate-
gorizing marijuana as a Schedule I drug reflects Congress's
conclusion that marijuana "lack[s] any accepted medical use,
and [that there is an] absence of any accepted safety for use
in medically supervised treatment." Raich, 545 US at 14 (cit-
ing 21 USC § 812(b)(1)). Consistently with that classification,
the Court has concluded that the Controlled Substances Act
does not contain a "medical necessity" exception that permits
the manufacture, distribution, or possession of marijuana for
medical treatment. Oakland Cannabis Buyers' Cooperative,
532 US at 494 and n 7.14 Despite efforts to reclassify mari-
juana, it has remained a Schedule I drug since the enactment
of the Controlled Substances Act. See Raich, 545 US at 14-15
and n 23 (summarizing "considerable efforts," ultimately
unsuccessful, to reschedule marijuana).

Section 903 of the Controlled Substances Act
addresses the relationship between that act and state law. It
provides:

"No provision of this subchapter shall be construed as
indicating an intent on the part of the Congress to occupy
the field in which that provision operates, including crimi-
nal penalties, to the exclusion of any State law on the same

practitioners to dispense controlled substances listed in Schedule II through V. 21
USC § 823(f). Section 822(b) authorizes persons registered with the Attorney
General to dispense controlled substances "to the extent authorized by their regis-
tration and in conformity with the other provisions of this subchapter." 21 USC
§ 822(b).

14 The specific question in Oakland Cannabis Buyers' Cooperative was whether
there was a medical necessity exception for manufacturing and distributing mari-
juana. The Court explained, however, that, "[l]est there be any confusion, we clar-
ify that nothing in our analysis, or the statute, suggests that a distinction should be
drawn between the prohibitions on manufacturing and distributing and the other
prohibitions in the Controlled Substances Act." 532 US at 494 n 7.

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subject matter which would otherwise be within the author-
ity of the State, unless there is a positive conflict between
that provision of this subchapter and that State law so that
the two cannot consistently stand together."

21 USC § 903. Under the terms of section 903, states are free
to pass laws "on the same subject matter" as the Controlled
Substances Act unless there is a "positive conflict" between
state and federal law "so that the two cannot consistently
stand together."

When faced with a comparable preemption provi-
sion, the Court recently engaged in an implied preemption
analysis to determine whether a federal statute preempted
state law. Wyeth v. Levine,
US
129 S
Ct 1187, 1196-1200, 173 L Ed 2d 51 (2009).15 That is, the
Court asked whether there is an "actual conflict" between
state and federal law. An actual conflict will exist either
when it is physically impossible to comply with both state
and federal law or when state law " 'stands as an obstacle to
the accomplishment and execution of the full purposes and
objectives of Congress.'" Freightliner Corp., 514 US at 287
(quoting Hines v. Davidowitz, 312 US 52, 67, 61 S Ct 399, 85
L Ed 2d 581 (1941)).

The Court has applied the physical impossibility
prong narrowly. Wyeth, 129 S Ct at 1199 (so stating); id. at
1209 (Thomas, J., concurring in the judgment).16 For exam-
ple, in Barnett Bank v. Nelson, 517 US 25, 116 S Ct 1103, 134

15 The provision at issue in Wyeth provided that the federal statute did not pre-
empt state law unless there was a "direct and positive" conflict between state and
federal law. 129 S Ct at 1196. At first blush, one might think that the Court would
have looked to the standard that Congress had expressly provided-whether there
is a "direct and positive conflict" between the state and federal laws-to determine
the extent to which federal law preempts state law. See Cipollone v. Liggett Group,
Inc., 505 US 504, 517, 112 S Ct 2608, 120 L Ed 2d 407 (1992) (holding that the pre-
emptive effect of a federal act is "governed entirely" by an express preemption pro-
vision). Implied preemption, however, addresses a similar issue, and the Court
used an implied preemption analysis in Wyeth without any discussion. 129 S Ct at
1196-1200. Given Wyeth, we follow a similar course here.

16 Justice Thomas noted that the Court had used different formulations to
explain when it would be physically impossible to comply with both state and fed-
eral laws and questioned whether the Court had applied that standard too strictly.
Wyeth, 129 S Ct at 1208-09 (opinion concurring in the judgment). In his view, the
physical impossibility test is too narrow, and asking whether state law stands as
an obstacle to the purposes of the federal law too amorphous. He would have asked
whether the state and federal law are in direct conflict. Id .; see Caleb Nelson,

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L Ed 2d 237 (1996), the question was whether "a federal stat-
ute that permits national banks to sell insurance in small
towns pre-empts a state statute that forbids them to do so."
Id. at 27. Although the two statutes were logically inconsis-
tent, the Court held that it was not physically impossible to
comply with both. Id. at 31. A national bank could simply
refrain from selling insurance. See Wyeth, 129 S Ct at 1209
(Thomas, J., concurring in the judgment) (explaining physi-
cal impossibility test).

Under that reasoning, it is not physically impossible
to comply with both the Oregon Medical Marijuana Act and
the federal Controlled Substances Act. To be sure, the two
laws are logically inconsistent; state law authorizes what fed-
eral law prohibits. However, a person can comply with both
laws by refraining from any use of marijuana, in much the
same way that a national bank could comply with state and
federal law in Barnett Bank by simply refraining from selling
insurance.

Because the "physical impossibility" prong of
implied preemption is "vanishingly narrow," Caleb Nelson,
Preemption, 86 Va L Rev 225, 228 (2000), the Court's deci-
sions typically have turned on the second prong of implied
preemption analysis-whether state law "stands as an obsta-
cle to the accomplishment and execution of the full purposes
and objectives of Congress." See Hines, 312 US at 67 (stating
test). In Barnett Bank, for example, the Court stated, as a
self-evident proposition, that a state law that prohibited
national banks from selling insurance when federal law per-
mitted them to do so would stand as an obstacle to the full
accomplishment of Congress's purpose, but it then added
"unless, of course, that federal purpose is to grant [national]
bank[s] only a very limited permission, that is, permission to
sell insurance to the extent that state law also grants permis-
sion to do so." Barnett Bank, 517 US at 31 (emphasis in orig-
inal). Having considered the text and history of the federal
statute and finding no basis for implying such a limited per-
mission, the Court held that the state statute was pre-
empted. Id. at 35-37.

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The Court has reached the same conclusion when, as
in this case, state law permits what federal law prohibits.
Michigan Canners & Freezers v. Agricultural Bd., 467 US
461, 104 S Ct 2518, 81 L Ed 2d 399 (1984). In Michigan
Canners, federal law prohibited food producers' associations
from interfering with an individual food producer's decision
whether to bring that individual's products to the market on
his or her own or to sell them through the association. Id. at
464-65. Michigan law on this issue generally tracked federal
law; however, Michigan law permitted food producers' asso-
ciations to apply to a state board for authority to act as the
exclusive bargaining agent for all producers of a particular
commodity. Id. at 466. When the state board gave a pro-
ducer's association that authority, all producers of a commod-
ity had to adhere to the terms of the contracts that the asso-
ciation negotiated with food processors, even when the
producer had declined to join the association. Id. at 467-68.

In considering whether federal law preempted the
Michigan law, the Court held initially that it was physically
possible to comply with both state and federal law. The Court
reasoned that, because the "Michigan Act is cast in permis-
sive rather than mandatory terms-an association may, but
need not, act as exclusive bargaining representative-this is
not a case in which it is [physically] impossible for an individ-
ual to comply with both state and federal law." Id. at 478 n 21
(emphasis in original). The Court went on to conclude, how-
ever, that "because the Michigan Act authorizes producers'
associations to engage in conduct that the federal Act forbids,
it 'stands as an obstacle to the accomplishment and execution
of the full purposes and objectives of Congress.'" Id. at 478
(quoting Hines, 312 US at 67).

The preemption issue in this case is similar to the
issue in Michigan Canners and Barnett Bank. In this case,
ORS 475.306(1) affirmatively authorizes the use of medical
marijuana. The Controlled Substances Act, however, prohib-
its the use of marijuana without regard to whether it is used
for medicinal purposes. As the Supreme Court has recog-
nized, by classifying marijuana as a Schedule I drug,
Congress has expressed its judgment that marijuana has no
recognized medical use. See Raich, 545 US at 14. Congress
did not intend to enact a limited prohibition on the use of

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marijuana-i.e., to prohibit the use of marijuana unless
states chose to authorize its use for medical purposes. Cf.
Barnett Bank, 517 US at 31-35 (reaching a similar conclusion
regarding the scope of the national bank act). Rather,
Congress imposed a blanket federal prohibition on the use of
marijuana without regard to state permission to use mari-
juana for medical purposes. Oakland Cannabis Buyers'
Cooperative, 532 US at 494 and n 7.

Affirmatively authorizing a use that federal law pro-
hibits stands as an obstacle to the implementation and exe-
cution of the full purposes and objectives of the Controlled
Substances Act. Michigan Canners, 467 US at 478. To be
sure, state law does not prevent the federal government from
enforcing its marijuana laws against medical marijuana
users in Oregon if the federal government chooses to do so.
But the state law at issue in Michigan Canners did not pre-
vent the federal government from seeking injunctive and
other relief to enforce the federal prohibition in that case.
Rather, state law stood as an obstacle to the enforcement of
federal law in Michigan Canners because state law affirma-
tively authorized the very conduct that federal law prohib-
ited, as it does in this case.

To the extent that ORS 475.306(1) affirmatively
authorizes the use of medical marijuana, federal law pre-
empts that subsection, leaving it "without effect." See
Cipollone v. Liggett Group, Inc., 505 US 504, 516, 112 S Ct
2608, 120 L Ed 2d 407 (1992) ("[S]ince our decision in
McCulloch v. Maryland, 4 Wheat. 316, 427 (1819), it has been
settled that state law that conflicts with federal law is 'with-
out effect.'"). Because ORS 475.306(1) was not enforceable
when employer discharged employee, no enforceable state
law either authorized employee's use of marijuana or
excluded its use from the "illegal use of drugs," as that phrase
is defined in ORS 659A.122(2) and used in ORS 659A.124. It
follows that BOLI could not rely on the exclusion in ORS
659A.122(2) for "uses authorized * * * under other provisions
of state * * * law" to conclude that medical marijuana use
was not an illegal use of drugs within the meaning of ORS
659A.124.

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The commissioner reached a different conclusion
regarding preemption, as would the dissenting opinion. We
address the commissioner's reasoning before turning to the
dissent. The commissioner, for his part, adopted the reasoning
from an informal Attorney General opinion, dated June 17,
2005, which concluded that the Controlled Substances Act
does not invalidate the Oregon Medical Marijuana Act.
Letter of Advice dated June 17, 2005, to Susan M. Allan,
Public Health Director, Department of Human Services. In
reaching that conclusion, the Attorney General focused on
those parts of the Oregon Medical Marijuana Act that either
exempt medical marijuana users from state criminal liability
or provide an affirmative defense to criminal charges. Id. at
2.17 In concluding that those exemptions from state criminal
liability were valid, the Attorney General relied on a line of
federal cases holding that "Congress cannot compel the
States to enact or enforce a federal regulatory program." See
Printz v. United States, 521 US 898, 935, 117 S Ct 2365, 138
L Ed 2d 914 (1997) (so stating); New York v. United States,
505 US 144, 162, 112 S Ct 2408, 120 L Ed 2d 120 (1992) (stat-
ing that "the Constitution has never been understood to con-
fer upon Congress the ability to require the States to govern
according to Congress's instructions"). The Attorney General
concluded that Oregon was free, as a matter of state law, to
exempt medical marijuana use from criminal liability
because Congress lacks the authority to require Oregon to
prohibit that use.

The Attorney General's opinion has no bearing on
the issue presented in this case for two reasons. First, as
noted, one subsection of the Oregon Medical Marijuana Act
affirmatively authorizes the use of medical marijuana. ORS

17 The Attorney General's opinion stated that the Oregon Medical Marijuana
Act "protects users who comply with its requirements from state criminal prose-
cution for production, possession, or delivery of a controlled substance." Letter
Opinion at 2. In support of that statement, the opinion cited former ORS 475.306(2)
(2003), which provided an affirmative defense for persons who possessed excess
amounts of marijuana if possession of that amount of marijuana were medically
necessary. See Or Laws 2005, ch 822, § 2 (repealing that provision). The opinion
also cited ORS 475.319 and ORS 475.309(9), which provides an affirmative defense
to criminal liability for persons who have applied for but not yet received a registry
identification card.

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475.306(1). Other provisions exempt its use from state crim-
inal liability. See, e.g., ORS 475.309(1); ORS 475.319. In this
case, only the validity of the authorization matters. ORS
659A.122(2) excludes medical marijuana use from the defi-
nition of "illegal use of drugs" for the purposes of the state
employment discrimination laws if state law authorizes that
use. The Attorney General's opinion, however, addresses
only the validity of the exemptions; it does not address the
validity of the authorization found in ORS 475.306(1). It thus
does not address the issue that is central to the resolution of
this case.

Second, and more importantly, the validity of the
exemptions and the validity of the authorization turn on dif-
ferent constitutional principles. The Attorney General rea-
soned that the exemptions from criminal liability are valid
because "Congress cannot compel the States to enact or
enforce a federal regulatory program"-a restriction that
derives from Congress's limited authority under the federal
constitution. See Printz, 521 US at 935 (stating limited
authority); New York, 505 US at 161-66 (describing the
sources of that limitation). Under the Attorney General's rea-
soning and the United States Supreme Court decisions on
which his opinion relies, Congress lacks authority to require
states to criminalize conduct that the states choose to leave
unregulated, no matter how explicitly Congress directs the
states to do so.

By contrast, there is no dispute that Congress has
the authority under the Supremacy Clause to preempt state
laws that affirmatively authorize the use of medical mari-
juana. Whether Congress has exercised that authority turns
on congressional intent: that is, did Congress intend to pre-
empt the state law? See Cipollone, 505 US at 516 (describing
preemption doctrine). More specifically, the constitutional
question in this case is whether, under the doctrine of implied
preemption, a state law authorizing the use of medical mari-
juana "stands as an obstacle to the accomplishment and exe-
cution of the full purposes and objectives of Congress." See
Hines, 312 US at 67 (stating that test). Nothing in the
Attorney General's opinion addresses that question, and the
commissioner erred in finding an answer in the Attorney

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General's opinion to a question that the Attorney General
never addressed.

The dissent addresses the issue that the Attorney
General's opinion did not and would hold for alternative rea-
sons that ORS 475.306(1) does not stand as an obstacle to the
full accomplishment of Congress's purposes in enacting the
Controlled Substances Act. The dissent reasons that, because
ORS 475.306(1) does not "giv[e] permission to violate the
Controlled Substances Act or affec[t] its enforcement, [that
subsection] does not pose an obstacle to the federal act neces-
sitating a finding of implied preemption." 348 Or at 197
(Walters, J., dissenting).18 In the dissent's view, the fact that
a state law affirmatively authorizes conduct that federal law
explicitly forbids is not sufficient to find that the state law
poses an obstacle to the full accomplishment of the purposes
of the federal law and is thus preempted. The dissent also
advances what appears to be an alternative basis for its posi-
tion. It reasons that the Oregon Medical Marijuana Act, as a
whole, exempts medical marijuana use from state criminal
liability and that ORS 475.306(1) is merely one part of that
larger exemption. It appears to draw two different legal con-
clusions from that alternative proposition. It suggests that, to
the extent ORS 475.306(1) merely exempts medical mari-
juana use from criminal liability, then Congress lacks power
to require states to criminalize that conduct under the line of
cases that the Attorney General cited. Alternatively, it sug-
gests that, because authorization is merely the other side of
the coin from exemption, authorizing medical marijuana use
poses no more of an obstacle to the accomplishment of the
purposes of the Controlled Substances Act than exempting
that use from state criminal liability and thus that use is not
preempted. We begin with the test that the dissent would
employ in obstacle preemption cases.

18 The dissent phrases the test it would apply in various ways throughout its
opinion. For instance, it begins its opinion by stating that the Oregon Medical
Marijuana Act neither "permits [n]or requires the violation of the Controlled
Substances Act." 348 Or at 190 (Walters, J., dissenting). Because the Oregon
Medical Marijuana Act permits (and indeed authorizes) conduct that violates the
Controlled Substances Act, we understand the dissent to use the word "permits" to
mean expressly purports to "giv[e] permission," as it later rephrases its test. We
also note that, if the Oregon Medical Marijuana Act "required" a violation of federal
law, then the physical impossibility prong of implied preemption would apply.

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As noted, the dissent would hold that a state law
stands as an obstacle to the execution and accomplishment of
the full purposes of a federal law (and is thus preempted) if
the state law purports to override federal law either by giving
permission to violate the federal law or by preventing the fed-
eral government from enforcing its laws. We do not disagree
that such a law would be an obstacle. But it does not follow
that anything less is not an obstacle. Specifically, we disagree
with the dissent's view that a state law that specifically
authorizes conduct that a federal law expressly forbids does
not pose an obstacle to the full accomplishment of the pur-
poses of the federal law and is not preempted.

If Congress chose to prohibit anyone under the age of
21 from driving, states could not authorize anyone over the
age of 16 to drive and give them a license to do so. The state
law would stand as an obstacle to the accomplishment of the
full purposes and objectives of Congress (keeping everyone
under the age of 21 off the road) and would be preempted. Or,
to use a different example, if federal law prohibited all sale
and possession of alcohol, a state law licensing the sale of
alcohol and authorizing its use would stand as an obstacle to
the full accomplishment of Congress's purposes. ORS
475.306(1) is no different. To the extent that ORS 475.306(1)
authorizes persons holding medical marijuana licenses to
engage in conduct that the Controlled Substances Act explic-
itly prohibits, it poses the same obstacle to the full accom-
plishment of Congress's purposes (preventing all use of mari-
juana, including medical uses).

The dissent, however, reasons that one state case
and four federal cases support its view of obstacle pre-
emption. It reads State v. Rodriguez, 317 Or 27, 854 P2d
399 (1993), as providing direct support for its view. See 348
Or at 197 (Walters, J., dissenting). In Rodriguez, federal
Immigration and Naturalization Service (INS) agents
obtained evidence pursuant to a federal administrative war-
rant that was valid under federal law but not under the
Oregon Constitution, and the question was whether sup-
pressing evidence obtained pursuant to that warrant in a

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state criminal proceeding was an obstacle to the accomplish-
ment of the full purposes and objectives of the federal immi-
gration laws. This court held that it was not. Suppressing evi-
dence in the state criminal proceeding was completely
unrelated to the INS's ability to carry out its separate mis-
sion of enforcing the federal immigration laws in a federal
administrative proceeding. This court did not hold in
Rodriguez, as the dissent appears to conclude, that state law
will be an obstacle to the full accomplishment of the purposes
of the federal law only if state law interferes with the federal
government's ability to enforce its laws.

The dissent also relies on four United States
Supreme Court cases "for the proposition that states may
impose standards of conduct different from those imposed by
federal law without creating an obstacle to the federal law."
348 Or at 199 (Walters, J., dissenting). It follows, the dissent
reasons, that the mere fact that state law authorizes conduct
that federal law forbids does not mean that state law is an
obstacle to the accomplishment of the purposes of the federal
law. The four cases on which the dissent relies stand for a
narrower proposition than the dissent draws from them. In
interpreting the applicable federal statute in each of those
cases, the Court concluded that Congress intended to leave
states free to impose complementary or supplemental regu-
lations on a person's conduct. None of those cases holds that
states can authorize their citizens to engage in conduct that
Congress explicitly has forbidden, as ORS 475.306(1) does.

In Wyeth, one of the cases on which the dissent
relies, the defendant argued that permitting state tort reme-
dies based on a drug manufacturer's failure to warn would
"interfere with 'Congress's purpose to entrust an expert
agency to make drug labeling decisions that strike a balance
between competing objectives.'" 129 S Ct at 1199 (quoting
the defendant's argument). After considering the history of
the federal statute, the Court concluded that "Congress did
not intend FDA oversight to be the exclusive means of ensur-
ing drug safety and effectiveness." Id. at 1200. The Court con-
cluded instead that Congress intended to allow complemen-
tary state tort remedies. Id. Given that interpretation of the
federal law, the Court determined that the state tort remedy

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was consistent with, and not an obstacle to, Congress's pur-
pose in requiring warnings in the first place. Put differently,
the state law was not an obstacle to Congress's purpose
because Congress intended to permit states to continue
enforcing complementary tort remedies.

The Court's opinion in Florida Lime & Avocado
Growers, Inc. v. Paul, 373 US 132, 83 S Ct 1210, 10 L Ed 2d
248 (1963), on which the dissent also relies, is to the same
effect. In that case, the Court determined that a federal mar-
keting order setting minimum standards for picking, process-
ing, and transporting avocados did not reflect a congressional
intent to prevent states from enacting laws governing "the
distribution and retail sale of those commodities." 373 US at
145. As the Court explained, "[congressional regulation at
one end of the stream of commerce does not, ipso facto, oust
all state regulation at the other end." Id. The Court accord-
ingly concluded that there was "no irreconcilable conflict
with the federal regulation [that] require[d] a conclusion that
[the state law] was displaced." Id. at 146.19 The Court's rea-
soning implies that, when, as in this case, there is an irrec-
oncilable conflict between state and federal law, that conflict
"requires a conclusion that [the state law] [i]s displaced." See
id.

In both Florida Lime & Avocado and Wyeth and the
other two cases the dissent cites, the Court interpreted the
applicable federal statute to permit complementary or sup-
plementary state law.20 None of those cases considered state

19 The dissenting opinion quotes the dissent in Florida Lime & Avocado for the
proposition that the conflict between state and federal law in that case was unmis-
takable. See 348 Or at 200-01 (Walters, J., dissenting) (quoting Florida Lime &
Avocado, 373 US at 173 (White, J., dissenting)). The majority, however, disagreed
on that point, 373 US at 145-46, and its conclusion that federal law left room for
complementary state law was pivotal to its conclusion that the federal marketing
order did not preempt California law.

20 The other two United States Supreme Court cases on which the dissent
relies are to the same effect. Neither case involved a federal statute that, as the
Court interpreted it, prohibited what the state law authorized. See California v.
ARC America Corp., 490 US 93, 103, 109 S Ct 1661, 104 L Ed 2d 86 (1989) (explain-
ing that nothing in an earlier decision that only direct purchasers may bring an
action under section 4 of the Clayton Act "suggests that it would be contrary to con-
gressional purposes for States to allow indirect purchasers to recover under their
own antitrust laws"); Silkwood v. Kerr-McGee Corp., 464 US 238, 256, 104 S Ct 615,
78 L Ed 2d 443 (1984) (holding that, even though Congress "was well aware of the
NRC's exclusive authority to regulate safety matters," Congress also had "assumed

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laws that authorized conduct that the federal law specifically
prohibited, as is present in this case, and none of those cases
stands for the proposition that such a law would not be an
obstacle to the accomplishment of the full purposes of
Congress. Rather, the Court's opinion in Florida Lime &
Avocado points in precisely the opposite direction; it teaches
that when, as in this case, the state and federal laws are in
"irreconcilable conflict," federal law will displace state law.
See 373 US at 146.

As noted, the dissent also advances what appears to
be an alternative ground for its position. The dissent reasons
that ORS 475.306(1) does not affirmatively authorize the use
of medical marijuana; it views that subsection instead as part
of a larger exemption of medical marijuana use from state
criminal laws. The dissent's reasoning is difficult to square
with the text of ORS 475.306(1). That subsection provides
that a person holding a registry identification card "may
engage" in the limited use of medical marijuana. Those are
words of authorization, not exemption. Beyond that, if ORS
475.306(1) were merely part of a larger exemption, then no
provision of state law would authorize the use of medical
marijuana. If that were true, medical marijuana use would
not come within one of the exclusions from the "illegal use of
drugs," as that phrase is defined in ORS 659A.122, and the
protections of ORS 659A.112 would not apply to employee.
See ORS 659A.124 (so providing).21

Another thread runs through the dissent. It reasons
that, as a practical matter, authorizing medical marijuana
use is no different from exempting that use from criminal lia-
bility. It concludes that, if exempting medical marijuana use
from criminal liability is not an obstacle to the accomplish-
ment of the purposes of the Controlled Substances Act and is

that state law remedies, in whatever form they might take, were available to those
injured in nuclear incidents").

21 There is a suggestion in the dissent that ORS 475.306(1) is integral to the
goal of exempting medical marijuana use from state criminal liability and cannot
be severed from the remainder of the Oregon Medical Marijuana Act. That act,
however, contains an express severability clause, and it is not apparent why the
provisions exempting medical marijuana use from state criminal liability cannot
"be given full effect without [the authorization to use medical marijuana found in
ORS 475.306(1)]." See Or Laws 1999, ch 4, § 18 (providing the terms for severing
any part of the act held invalid).

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thus not preempted, then neither is a state law authorizing
medical marijuana use. The difficulty with the dissent's rea-
soning is its premise. It presumes that a law exempting med-
ical marijuana use from liability is valid because it is not pre-
empted. As the Attorney General's opinion explained,
however, Congress lacks the authority to compel a state to
criminalize conduct, no matter how explicitly it directs a
state to do so. When, however, a state affirmatively author-
izes conduct, Congress has the authority to preempt that law
and did so here. The dissent's reasoning fails to distinguish
those two analytically separate constitutional principles.

In sum, whatever the wisdom of Congress's policy
choice to categorize marijuana as a Schedule I drug, the
Supremacy Clause requires that we respect that choice
when, as in this case, state law stands as an obstacle to the
accomplishment of the full purposes of the federal law. Doing
so means that ORS 475.306(1) is not enforceable. Without an
enforceable state law authorizing employee's use of medical
marijuana, that basis for excluding medical marijuana use
from the phrase "illegal use of drugs" in ORS 659A.122(2) is
not available.

As noted, a second possible exclusion from the defi-
nition of "illegal use of drugs" exists, which we also address.
The definition of "illegal use of drugs" also excludes from that
phrase "the use of a drug taken under supervision of a
licensed health care professional."22 ORS 659A.122(2). On
that issue, as noted above, employee's physician signed a
statement that employee had been diagnosed with a debili-
tating condition, that marijuana may mitigate the symptoms
or effects of that condition, but that the physician's statement
was not a prescription to use marijuana. That statement was
sufficient under the Oregon Medical Marijuana Act to permit

22 The commissioner did not consider whether this exclusion applied, in part
because the Court of Appeals had stated in Washburn that the use of marijuana for
medical purposes was "not unlawful," which the parties and the commissioner con-
cluded was sufficient to answer employer's reliance on ORS 659A. 124. Although we
could remand this case to the commissioner to permit him to address whether this
exclusion applies, its application in this case turns solely on an issue of statutory
interpretation, an issue on which we owe the commissioner no deference. In these
circumstances, we see no need to remand and unnecessarily prolong the resolution
of this case.

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employee to obtain a registry identification card, which then
permitted him to use marijuana to treat his condition.
Employee's physician recommended that employee use mari-
juana five to seven times daily by inhalation. However, with-
out a prescription, employee's physician had no ability to con-
trol either the amount of marijuana that employee used or
the frequency with which he used it, if employee chose to dis-
regard his physician's recommendation.

The question thus posed is whether employee used
marijuana "under supervision of a licensed health care pro-
fessional." The answer to that question turns initially on
what a person must show to come within that exclusion. As
explained below, we conclude that two criteria must be met to
come within the exclusion. As an initial matter, the phrase
"taken under supervision" of a licensed health care profes-
sional implies that the health care professional is monitoring
or overseeing the patient's use of what would otherwise be an
illegal drug. See Webster's Third New Int'l Dictionary 2296
(unabridged ed 2002) (defining supervise as "coordinate,
direct, and inspect continuously and at first hand the accom-
plishment of" a task); cf. Moore, 423 US at 143 (holding that a
physician who prescribed methadone, a Schedule II con-
trolled substance, without regulating his patients' dosage
and with no precautions against his patients' misuse of meth-
adone violated section 841 of the Controlled Substances Act).

Beyond supervision, when a health care professional
administers a controlled substance, the exclusion requires
that the Controlled Substances Act authorize him or her to do
so. That follows from the text and context of the definition of
illegal use of drugs set out in ORS 659A.122(2). After provid-
ing that the illegal use of drugs does not include "the use of a
drug taken under supervision of a licensed health care pro-
fessional," the legislature added "or other uses authorized
under the Controlled Substances Act." The phrase "or other
uses authorized by the Controlled Substances Act" is telling.
The words "other uses" imply that the preceding use (the use
of drugs taken under supervision of a licensed health care
professional) also refers to a use authorized by the Controlled
Substances Act. See Webster's at 1598 (defining "other" as
"being the one (as of two or more) left").

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Not only does the text of ORS 659A.122(2) imply
that the use of controlled substances taken under supervision
of a licensed health care professional refers to uses that the
Controlled Substances Act authorizes, but the context leads
to the same conclusion. See Stevens v. Czerniak, 336 Or 392,
401, 84 P3d 140 (2004) (explaining that context includes
" 'the preexisting common law and the statutory framework
within which the law was enacted' ") (quoting Denton and
Denton, 326 Or 236, 241, 951 P2d 693 (1998)). As noted, the
Controlled Substances Act both authorizes physicians and
other health care professionals to administer controlled sub-
stances for medical and research purposes and defines the
scope of their authority to do so. See Moore, 423 US at 138-40
(so holding). We infer that, in excluding "the use of a drug
taken under supervision of licensed health care profession-
als" from the phrase "illegal use of drugs," the legislature
intended to refer to those medical and research uses that,
under the Controlled Substances Act, physicians and other
health care professionals lawfully can put controlled
substances.

Another contextual clue points in the same direc-
tion. The exclusion in ORS 659A.122(2) for the use of a drug
taken under supervision of a licensed health care profes-
sional is virtually identical to an exclusion in the definition of
illegal use of drugs found in the ADA. See 42 USC
§ 12111(6)(A) (excluding "the use of a drug taken under
supervision by a licensed health care professional, or other
uses authorized by the Controlled Substances Act"). The fed-
eral exclusion contemplates medical and research uses that
the Controlled Substances Act authorizes, and there is no
reason to think that, in adopting the same exclusion, the
Oregon legislature had any different intent in mind. Cf.
Stevens, 336 Or at 402-03 (looking to the federal counterpart
to ORCP 36 to determine Oregon legislature's intent). Given
the text and context of ORS 659A.122(2), we conclude that,
when a health care professional administers a controlled sub-
stance, the exclusion for the "use of a drug taken under
supervision of a licensed health care professional" refers to
those medical and research uses that the Controlled
Substances Act authorizes.

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In sum, two criteria are necessary to come within the
exclusion for the use of a controlled substance taken under
supervision of a licensed health care professional: (1) the
Controlled Substances Act must authorize a licensed health
care professional to prescribe or administer the controlled
substance and (2) the health care professional must monitor
or supervise the patient's use of the controlled substance. In
this case, we need not decide whether the evidence was suf-
ficient to prove the second criterion-i.e., whether employee's
physician monitored or oversaw employee's use of mari-
juana. Even if it were, the Controlled Substances Act did not
authorize employee's physician to administer (or authorize
employee to use) marijuana for medical purposes. As noted,
under the Controlled Substances Act, physicians may not
prescribe Schedule I controlled substances for medical pur-
poses. At most, a physician may administer those substances
only as part of a Food and Drug Administration preapproved
research project.23 Because there is no claim in this case that
employee and his physician were participating in such a pro-
ject, employee's use of marijuana was not taken under super-
vision of a licensed health care professional, as that phrase is
used in ORS 659A.122(2).

Because employee did not take marijuana under
supervision of a licensed health care professional and
because the authorization to use marijuana found in ORS
475.306(1) is unenforceable, it follows that employee was cur-
rently engaged in the illegal use of drugs and, as the commis-
sioner found, employer discharged employee for that reason.
Under the terms of ORS 659A.124, "the protections of ORS
659A.112 do not apply" to employee. The commissioner's
final order on reconsideration rests, however, on the premise

23 Gonzales v. Oregon, 546 US 243, 126 S Ct 904, 163 L Ed 2d 748 (2006),
addressed a different issue from the one presented here. The Controlled
Substances Act provides that Schedule II controlled substances have accepted
medical uses, and the issue in Gonzales was whether the Attorney General had
exceeded his statutory authority in defining which uses of Schedule II controlled
substances were legitimate medical uses. In this case, by contrast, the Controlled
Substances Act provides that Schedule I controlled substances, such as marijuana,
have no accepted medical use. That congressional policy choice both addresses and
conclusively resolves the issue that the Attorney General lacked statutory author-
ity to address in Gonzales.

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that the protections of ORS 659A.112-specifically, the
requirement for employer to engage in a "meaningful inter-
active process" as an aspect of reasonable accommodation-
do apply to employee. Under ORS 659A.124, that premise is
mistaken, and the commissioner's revised order on reconsid-
eration cannot stand. Both the commissioner's order and the
Court of Appeals decision affirming that order on procedural
grounds must be reversed.

Given the number of the issues discussed in this
opinion, we summarize the grounds for our decision briefly.
First, employer preserved its challenge that, as a result of the
Controlled Substances Act, the use of medical marijuana is
an illegal use of drugs within the meaning of ORS 659A.124.
Second, two potentially applicable exclusions from the
phrase "illegal use of drugs"-the use of drugs authorized by
state law and the use of drugs taken under the supervision of
a licensed health care professional-do not apply here. Third,
regarding the first potentially applicable exclusion, to the
extent that ORS 475.306(1) authorizes the use of medical
marijuana, the Controlled Substances Act preempts that
subsection. We note that our holding in this regard is limited
to ORS 475.306(1); we do not hold that the Controlled
Substances Act preempts provisions of the Oregon Medical
Marijuana Act that exempt the possession, manufacture, or
distribution of medical marijuana from state criminal liabil-
ity. Fourth, because employee was currently engaged in the
illegal use of drugs and employer discharged him for that rea-
son, the protections of ORS 659A.112, including the obliga-
tion to engage in a meaningful interactive discussion, do not
apply. ORS 659A.124. It follows that BOLI erred in ruling
that employer violated ORS 659A.112.

The decision of the Court of Appeals and the revised
order on reconsideration of the Commissioner of the Bureau
of Labor and Industries are reversed.

WALTERS, J., dissenting.

Neither the Oregon Medical Marijuana Act nor any
provision thereof permits or requires the violation of the
Controlled Substances Act or affects or precludes its enforce-
ment. Therefore, neither the Oregon act nor any provision
thereof stands as an obstacle to the federal act. Because the

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majority wrongly holds otherwise, and because, in doing so, it
wrongly limits this state's power to make its own laws, I
respectfully dissent.

The United States Constitution establishes a system
of dual sovereignty in which state and federal governments
exercise concurrent authority over the people. Printz v.
United States, 521 US 898, 920, 117 S Ct 2365, 138 L Ed 2d
914 (1997). Each government is supreme within its own
sphere. Id. at 920-21. In enacting the federal Controlled
Substances Act, which prohibits all use of marijuana,
Congress acted pursuant to its authority under the
Commerce Clause. Gonzales v. Raich, 545 US 1, 5, 125 S Ct
2195, 162 L Ed 2d 1 (2005). In enacting the Oregon Medical
Marijuana Act, which permits the circumscribed use of med-
ical marijuana, Oregon acted pursuant to its historic power
to define state criminal law and to protect the health, safety,
and welfare of its citizens. Whalen v. Roe, 429 US 589, 603,
603 n 30, 97 S Ct 869, 51 L Ed 2d 64 (1977); Robinson v.
California, 370 US 660, 664, 82 S Ct 1417, 8 L Ed 2d 758
(1962).

In enacting the Controlled Substances Act, Congress
did not have the power to require Oregon to adopt, as state
criminal law, the policy choices represented in that federal
act. Congress does not have the power to commandeer a
state's legislative processes by compelling it to enact or
enforce federal laws. New York v. United States, 505 US 144,
149, 112 S Ct 2408, 120 L Ed 2d 120 (1992). "[E]ven where
Congress has the authority under the Constitution to pass
laws requiring or prohibiting certain acts, it lacks the power
directly to compel the States to require or prohibit those
acts." Id. at 166.

Because it had authority to enact the Controlled
Substances Act, Congress did, however, have the power to
expressly preempt state laws that conflict with the
Controlled Substances Act. A cornerstone of the Supreme
Court's Supremacy Clause analysis is that "[i]n all pre-
emption cases, and particularly in those in which Congress
has legislated in a field which the States have traditionally
occupied," the Court "start[s] with the assumption that the
historic police powers of the States were not to be superseded

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by the Federal Act unless that was the clear and manifest
purpose of Congress." Wyeth v. Levine,\_US\_,,
129 S Ct 1187, 1194-95, 173 L Ed 2d 51 (2009) (internal ellip-
sis and quotation marks omitted). The Court relies on that
presumption out of "respect for the States as independent
sovereigns in our federal system." Id. at 1195 n 3 (internal
quotation marks omitted).

As the majority recognizes, the Controlled
Substances Act does not include an express preemption pro-
vision. 348 Or at 173-75. It contains, instead, "a saving
clause" intended to "preserve state law." See Wyeth, 129 S Ct
at 1196 (so construing nearly identical provision in Federal
Food, Drug, and Cosmetic Act). Thus, the majority should
begin its analysis "with the assumption that the historic
police powers [exercised by the State of Oregon] were not to
be superseded by the Federal Act * * *. " Id. at 1194-95.

The majority does not do so. It instead implies, from
the federal policy choice that the Controlled Substances Act
represents, a Congressional intent to preempt provisions of
Oregon law that makes a different policy choice. 348 Or at
184. To understand the majority's error in applying the
"obstacle" prong of the United States Supreme Court's
implied preemption analysis, it is important to understand
the purposes and effects of the federal and state laws that are
at issue in this case.

Congress enacted the federal Controlled Substances
Act, as the majority explains, to "conquer drug abuse" and
"control" traffic in controlled substances. 348 Or at 172-73. In
listing marijuana as a Schedule I drug, Congress decided
that marijuana has no recognized medical use. Therefore,
"Congress imposed a blanket federal prohibition" on the use
of marijuana. 348 Or at 177-78. As noted, Congress did not
expressly indicate, however, that states could not enact their
own criminal drug laws or make different decisions about the
appropriate use of marijuana.

Oregon did in fact enact its own criminal drug laws,
including the state Uniform Controlled Substances Act (ORS

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475.005 to 475.285 and ORS 475.840 to 475.980). That act
controls and punishes, as state criminal law, the use of all
substances that the federal government classifies as Sched-
ule I drugs, including marijuana. ORS 475.840; ORS 475.856
\- 475.864. Oregon also enacted the Oregon Medical Mari-
juana Act. That act exempts certain medical marijuana users
from the state criminal drug laws, including from the state
Uniform Controlled Substances Act. The Oregon Medical
Marijuana Act does not permit Oregonians to violate the fed-
eral Controlled Substances Act or bar the federal government
from continuing to enforce the federal Controlled Substances
Act against Oregonians. The Oregon Attorney General
described the purpose and reach of the Oregon Medical
Marijuana Act in a letter ruling:

"The Act protects medical marijuana users who comply
with its requirements from state criminal prosecution for
production, possession, or delivery of a controlled sub-
stance. See, e.g., ORS 475.306(2), 475.309(9) and 475.319.
However, the Act neither protects marijuana plants from
seizure nor individuals from prosecution if the federal gov-
ernment chooses to take action against patients or caregiv-
ers under the federal [Controlled Substances Act]. The Act
is explicit in its scope: 'Except as provided in ORS 475.316
and 475.342, a person engaged in or assisting in the medi-
cal use of marijuana [in compliance with the terms of the
Act] is excepted from the criminal laws of the state for pos-
session, delivery or production of marijuana, aiding and
abetting another in the possession, delivery or production of
marijuana or any other criminal offense in which posses-
sion, delivery or production of marijuana is an element
\* \* \* ' ORS 475.309(1)."

Letter of Advice dated June 17, 2005, to Susan M. Allan,
Public Health Director, Department of Human Services, 2
(first emphasis in original; later emphases added).1 The
Oregon Attorney General also concluded in that letter ruling

1 Consistent with the Attorney General's letter opinion, ORS 475.300(4) pro-
vides that ORS 475.300 to 475.346-the entirety of the Oregon Medical Marijuana
Act-is "intended to make only those changes to existing Oregon laws that are nec-
essary to protect patients and their doctors from criminal and civil penalties[.]"
(Emphasis added.)

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that the decision of the Supreme Court in Raich-that
Congress had authority to enact the blanket prohibitions in
the Controlled Substances Act-had no effect on the validity
of Oregon's statute:

"Raich does not hold that state laws regulating medical
marijuana are invalid nor does it require states to repeal
existing medical marijuana laws. Additionally, the case
does not oblige states to enforce federal laws. * * * The prac-
tical effect of Raich in Oregon is to affirm what we have
understood to be the law since the adoption of the Act."2

Id. (emphasis in original).

The majority seems to accept that the Oregon
Medical Marijuana Act does not bar the federal government
from enforcing the Controlled Substances Act. The majority
acknowledges that "state law does not prevent the federal
government from enforcing its marijuana laws against med-
ical marijuana users in Oregon if the federal government
chooses to do so." 348 Or at 178. The majority also seems to
accept, as a result, that provisions of the Oregon Medical

2 The question that the Oregon Attorney General answered in the letter opin-
ion was "Does Gonzales v. Raich, 545 US [1] (2005), * * * invalidate the Oregon
statutes authorizing the operation of the Oregon Medical Marijuana Program?"
The Attorney General said, "No." The Attorney General explained that "[t]he Act
protects medical marijuana users who comply with its requirements from state
criminal prosecution for production, possession, or delivery of a controlled sub-
stance," and cited ORS 475.309, ORS 475.319, and ORS 475.306(2). At the time of
the Attorney General opinion, ORS 475.306(2) (2003) provided:

"If the individuals described in subsection (1) of this section possess, deliver or
produce marijuana in excess of the amounts allowed in subsection (1) of this
section, such individuals are not excepted from the criminal laws of the state
but may establish an affirmative defense to such charges, by a preponderance
of the evidence that the greater amount is medically necessary to mitigate the
symptoms or effects of the person's debilitating medical condition."

ORS 475.306(2) (2003), amended by Or Laws 2005, ch 822, § 2 (emphasis added).
Thus, one of the subsections of the Oregon Medical Marijuana Act that the
Attorney General cited used words of authorization very similar to those used in
ORS 475.306(1).

Throughout the opinion, the Attorney General discussed the continued validity
of the Oregon Medical Marijuana Act as a whole and did not in any way differenti-
ate between provisions of the act that authorize medical marijuana use and those
that create an exemption from state prosecution. In fact, the Attorney General spe-
cifically opined that the state is entitled to continue to issue registry identification
cards-cards that, by definition, are documents that identify persons "authorized
to engage in the medical use of marijuana." ORS 475.302(10) (emphasis added).

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Marijuana Act that exempt persons from state criminal lia-
bility do not pose an obstacle to the Controlled Substances
Act.3 However, in the majority's view, one subsection of the
Oregon Medical Marijuana Act, ORS 475.306(1), presents an
obstacle to the Controlled Substances Act and does so solely
because it includes words of authorization. Id. at 178.

As I will explain in more detail, I believe that the
majority is incorrect in reaching that conclusion. First, the
words of authorization used in ORS 475.306(1) and other
subsections of the Oregon Medical Marijuana Act serve only
to make operable the exceptions to and exemptions from
state prosecution provided in the remainder of the act. The
words of authorization used in those subsections do not grant
authorization to act that is not already inherent in the excep-
tions or exemptions, nor do they permit the violation of fed-
eral law. Second, in instances in which state law imposes
standards of conduct that are different than the standards of
conduct imposed by federal law, but both laws can be
enforced, the Supreme Court has not held the state laws to be
obstacles to the federal laws, nor discerned an implied
Congressional intent to preempt the state laws from the dif-
ferent policy choices made by the federal government. Thus,
the majority is incorrect in finding that the standard of
conduct and policy choice represented by the Controlled
Substances Act prohibits a different state standard of con-
duct and policy choice. Both the Oregon Medical Marijuana
Act and the Controlled Substances Act can be enforced, and
this state court should not interpret the federal act to
impliedly preempt the state act.

The Oregon Medical Marijuana Act contains a num-
ber of subsections that use words of authorization. Those sub-
sections are interwoven with the subsections of the act that
except and exempt medical marijuana users from criminal
liability. For instance, ORS 475.309, which the majority cites
as a provision that excepts persons who use medical mari-
juana from state criminal liability, 348 Or at 179-80, provides
that a person engaged in or assisting in the medical use of
marijuana "is excepted from the criminal laws of the state" if

3 The majority expressly leaves that question open, however. 348 Or at 172
n 12.

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certain conditions, including holding a "registry identification
card," are satisfied. (Emphases added.) ORS 475.302(10)
defines "registry identification card" as follows:

"a document issued by the department that identifies a per-
son authorized to engage in the medical use of marijuana
and the person's designated primary caregiver, if any."

## (Emphasis added.)

Consider also ORS 475.306(1), the section of the act
that the majority finds offending. That subsection references
both ORS 475.309, the exception section, and the registry
identification card necessary to that exception. ORS
475.306(1) provides:

"A person who possesses a registry identification card
issued pursuant to ORS 475.309 may engage in, and a des-
ignated primary caregiver of such person may assist in, the
medical use of marijuana only as justified to mitigate the
symptoms or effects of the person's debilitating medical
condition."4

(Emphasis added.) Reading those three provisions together,
it is clear that ORS 475.306(1) serves as a limitation on the
use of medical marijuana that the registry identification card
and ORS 475.309 together permit. Under ORS 475.306(1), a
person who possesses a registry identification card issued
pursuant to ORS 475.309 may engage in the use the card
permits "only as justified to mitigate the symptoms or effects
of the person's debilitating medical condition." (Emphasis
added.)

ORS 475.319, another section of the act that the
majority cites as creating an exemption from criminal liabil-
ity, also depends on words of permission for its operation. 348
Or at 179-80. ORS 475.319 creates an affirmative defense to
a criminal charge of possession of marijuana, but only for per-
sons who possess marijuana "in amounts permitted under
ORS 475.320." (Emphasis added.) ORS 475.320(1)(a) pro-
vides: "A registry identification cardholder * * * may possess

4 The majority recognizes that it is essential to read ORS 475.306(1) and ORS
475.302(10) together to find an affirmative authorization to use marijuana for
medicinal purposes, 348 Or at 171. However, the majority does not explain why it
finds ORS 475.306(1) and not ORS 475.302(10) preempted.

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up to six mature marijuana plants and 24 ounces of usable
marijuana." (Emphasis added.)

The words of authorization used in ORS 475.306(1)
are no different from the words of authorization that are used
in other sections of the act and that are necessary to effectu-
ate ORS 475.309 and ORS 475.319 and the exceptions to and
exemptions from criminal liability that they create. Those
words of authorization do not grant permission that would
not exist if those words were eliminated or replaced with
words of exception or exclusion. Even if it did not use words of
permission, the Oregon Medical Marijuana Act would per-
mit, for purposes of Oregon law, the conduct that it does not
punish. Furthermore, the statutory sections that provide
that citizens may, for state law purposes, engage in the con-
duct that the state will not punish have no effect on the
Controlled Substances Act that is greater than the effect of
the sections that declare that the state will not punish that
conduct.

Because neither the Oregon Medical Marijuana Act
nor any subsection thereof gives permission to violate the
Controlled Substances Act or affects its enforcement, the
Oregon act does not pose an obstacle to the federal act neces-
sitating a finding of implied preemption. In State v.
Rodriguez, 317 Or 27, 854 P2d 399 (1993), this court recog-
nized that state and federal laws can prescribe different stan-
dards, each acting within its own authority, without affecting
the other's authority, and without offending the Supremacy
Clause. In that case, the defendant had been arrested by fed-
eral immigration agents on a warrant that the state conceded
did not satisfy the oath or affirmation requirement of Article
I, section 9, of the Oregon Constitution. The state argued,
however, that, because the warrant was valid under federal
law, "the Supremacy Clause render[ed] Article I, section 9,
inapplicable to the arrest * * *. " Id. at 34. The court rejected
that argument and concluded that preemption was not at
issue because the application of the state constitutional
requirements for an arrest warrant did not "affect the ability
of the federal government to administer or enforce its * * *
laws." Id. at 36. Because the court interpreted the state con-
stitution not to impose requirements on arrests by federal
officers, the state and the federal law did not conflict:

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"Because this court's interpretation of Article I, section 9, in
this context, cannot and will not interfere with the federal
government in immigration matters, the Supremacy
Clause has no bearing on this case and this court is not 'pre-
empted' from applying Article I, section 9, to defendant's
arrest."

Id. Similarly, the Oregon Medical Marijuana Act "cannot and
will not interfere with" the federal government's enforcement
of the Controlled Substances Act and does not offend the
Supremacy Clause.

Instead of following Rodriguez, the majority relies
on two United States Supreme Court cases for the proposi-
tion that state law that permits what federal law prohibits is
impliedly preempted. 348 Or at 177-78. The majority then
concludes that, "[t]o the extent that ORS 475.306(1) affirma-
tively authorizes the use of medical marijuana, federal law
preempts that subsection, leaving it 'without effect.'" 348 Or
at 178. I disagree with the majority's analysis for two rea-
sons. First, the cases that the majority cites stand only for the
proposition that when federal law bestows an unlimited
power or right, state law cannot preclude the exercise of that
power or right. The Controlled Substances Act does not cre-
ate a right; it prohibits certain conduct. Second, other
Supreme Court cases hold that when a federal law does not
create powers or rights but, instead, sets standards for con-
duct, state law may set different standards for the same con-
duct without offending the Supremacy Clause, as long as
both sets of laws may be enforced. By deciding not to punish
the medical use of marijuana, the Oregon Medical Marijuana
Act authorizes, for state law purposes, conduct that the
Controlled Substances Act prohibits. The Oregon Medical
Marijuana Act does not, however, offend the Supremacy
Clause because it does not affect enforcement of the
Controlled Substances Act.

In the first of the two cases on which the majority
relies, Barnett Bank v. Nelson, 517 US 25, 116 S Ct 1103, 134
L Ed 2d 237 (1996), a federal statute explicitly granted
national banks the unlimited power to sell insurance in small
towns. A state statute forbade and impaired the exercise of
that power, and the court held that it was preempted.

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Michigan Canners & Freezers v. Agricultural Bd.,
467 US 461, 104 S Ct 2518, 81 L Ed 2d 399 (1984), the second
case on which the majority relies, concerned a conflict
between the federal Agricultural Fair Practices Act, which
protects the rights of producers of agricultural goods to
remain independent and to bring their products to market on
their own without being required to sell those products
through an association, and a Michigan statute. Id. at 473. As
the court explained in Massachusetts Medical Soc. v.
Dukakis, 815 F2d 790, 796 (1st Cir), cert den, 484 US 896
(1987), the Agricultural Fair Practice Act creates a "right to
refrain from joining an association of producers[.]" (Ellipses
omitted.) The Michigan statute at issue prevented the exer-
cise of the right conferred by the act by precluding an agri-
cultural producer "from marketing his goods himself" and
"impos[ed] on the producer the same incidents of association
membership with which Congress was concerned * * *. "
Michigan Canners, 467 US at 478. The Court held that under
those circumstances, the state statute was preempted.

Neither Barnett nor Michigan Canners stands for
the proposition that a state statute that permits conduct that
the federal government punishes is preempted. In those
cases, the federal statutes did not punish conduct; they cre-
ated powers or rights. The Court therefore struck down state
statutes that forbade, impaired, or prevented exercise of
those powers or rights. Because the Controlled Substances
Act does not create a federal power or right and the Oregon
Medical Marijuana Act does not forbid, impair, or prevent the
exercise of a federal power or right, Barnett and Michigan
Canners are inapposite. The more relevant Supreme Court
cases are those that consider the circumstance that exists
when federal and state laws impose different standards of
conduct. Those cases stand for the proposition that states
may impose standards of conduct different from those
imposed by a federal law without creating an obstacle to the
federal law.

In California v. ARC America Corp., 490 US 93, 109
S Ct 1661, 104 L Ed 2d 86 (1989), the Court considered, under
the "obstacle prong" of its "actual conflict" implied preemp-
tion analysis, the conflict between Section 4 of the federal

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Clayton Act, which authorizes only direct purchasers to
recover monopoly overcharges, and a state statute, which
expressly permits recovery by indirect purchasers. The
Supreme Court held that, even if the state statute directly
conflicted with the goals of the federal law, as the Ninth
Circuit had held, the state statute was not preempted. The
Supreme Court reasoned that states are not required to pur-
sue federal goals when enacting their own laws:

"It is one thing to consider the congressional policies iden-
tified in Illinois Brick and Hanover Shoe in defining what
sort of recovery federal antitrust law authorizes; it is some-
thing altogether different, and in our view inappropriate, to
consider them as defining what federal law allows States to
do under their own antitrust law."

Id. at 103.

Other Supreme Court cases also illustrate the
Court's refusal to imply preemption, under the "obstacle"
prong of its implied preemption analysis, where state and
federal statutes set contrary standards or pursue contrary
objectives. In Silkwood v. Kerr-McGee Corp., 464 US 238,
246, 104 S Ct 615, 78 L Ed 2d 443 (1984), a case that the court
in ARC America cited as authority, the jury had awarded the
plaintiff a judgment of $10 million in punitive damages
against the defendant, a nuclear power company. The defen-
dant asserted that a conflict existed between the state law
that permitted the judgment and a federal law regulating
nuclear power plants, with which the defendant had com-
plied. Despite an earlier ruling that the Nuclear Regulatory
Commission had exclusive authority to regulate the safety of
nuclear power plants,5 and even though the Court accepted
that "there is tension between the conclusion that safety reg-
ulation is the exclusive concern of the federal law and the
conclusion that a State may nevertheless award damages
based on its own law of liability," id. at 256, the Court refused
to invalidate the state law.

In Florida Lime & Avocado Growers, Inc. v. Paul,
373 US 132, 83 S Ct 1210, 10 L Ed 2d 248 (1963), a federal

5 Pacific Gas & Elec. v. Energy Resources Comm'n, 461 US 190, 211-13, 103
S Ct 1713, 75 L Ed 2d 752 (1983).

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statute authorized the marketing of Florida avocados on the
basis of weight, size, and picking date; California, however,
regulated the marketing of avocados sold in the state on the
basis of oil content. As a result of the differing standards,
about six percent of Florida avocados that were deemed mature
under federal standards were rejected from California
markets. The plaintiffs argued that the federal standard for
regulating Florida avocados preempted California's conflict-
ing regulation. As the dissent argued:

"The conflict between federal and state law is unmistakable
here. The Secretary asserts certain Florida avocados are
mature. The state law rejects them as immature. And the
conflict is over a matter of central importance to the federal
scheme. The elaborate regulatory scheme of the marketing
order is focused upon the problem of moving mature avoca-
dos into interstate commerce. The maturity regulations are
not peripheral aspects of the federal scheme."

373 US at 173 (White, J., dissenting). The majority, however,
concluded that the test of whether an actual conflict existed
was not whether the laws adopted contrary standards, but
whether both laws could be enforced:

"The test of whether both federal and state regulations may
operate, or the state regulation must give way, is whether
both regulations can be enforced without impairing the fed-
eral superintendence of the field, not whether they are
aimed at similar or different objectives."

Id. at 142 (emphasis added).

The Court's most recent case on the issue, Wyeth v.
Levine, __ US __ , 129 S Ct 1187, 174 L Ed 2d 51 (2009), is
in accord. In that case, the court was presented with a conflict
between state and federal law that the dissent characterized
as follows: "The FDA told Wyeth that Phenergan's label ren-
ders its use 'safe.' But the State of Vermont, through its tort
law said: 'Not so.' "6 Id., 129 S Ct at 1231 (Alito, J., dissenting).
Nevertheless, the majority upheld the state law. Although

6 The FDA had also adopted a regulation declaring that "certain state law
actions, such as those involving failure-to-warn claims, 'threaten FDA's statutorily
prescribed role as the expert Federal agency responsible for evaluating and regu-
lating drugs.'" Id. at 1200.

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the two laws imposed contradictory standards, the state law
was not preempted.

The cases that I have reviewed demonstrate that
the Supreme Court requires more as a basis for imply-
ing a congressional intent to preempt a state law than a
Congressional purpose that is at odds with the policy that a
state selects. The Court has permitted state laws that impose
standards of conduct different than those set by federal laws
to stand unless the state laws preclude the enforcement of
the federal laws or have some other demonstrated effect on
their operation. The Court has found state laws that forbid,
impair, or prevent the exercise of federally granted powers or
rights to be preempted.

The majority does not contend, in accordance with
those cases, that ORS 475.306(1) or the Oregon Medical
Marijuana Act as a whole precludes enforcement of the
Controlled Substances Act or has any other demonstrated
effect on its "accomplishment and execution." The only obsta-
cles to the federal act that the majority identifies are
Oregon's differing policy choice and the lack of respect that it
signifies. 348 Or at 185.

As an example of the way it believes the Supremacy
Clause to operate, the majority posits that, if Congress were
to pass a law prohibiting persons under the age of 21 from
driving, a state law authorizing persons over the age of 16 to
drive and giving them a license to do so would be preempted.7
348 Or at 182. The majority would be correct if Congress had
authority to make such a law and if Congress expressly pre-
empted state laws allowing persons under the age of 21 to
drive or indicated an intent to occupy the field. However,
without such statement of Congressional intent, implied pre-
emption does not necessarily follow. As a sovereign state,
Oregon has authority to license its drivers and to choose its
own age requirements. If Oregon set at 16 years the mini-
mum age for its drivers, then the Oregon driver licenses it
issued would give 16-year-olds only state permission to drive.

7 As I read the majority opinion, a state law providing that Oregon would not
punish drivers between the ages of 16 and 21, as opposed to permitting those per-
sons to drive, would withstand a Supremacy Clause challenge.

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The Oregon law would not be preempted, but neither would it
protect 16-year-olds from federal prosecution and liability.

As a result, an Oregon legislature considering
whether to enact such a law could decide, as a practical mat-
ter, that it would not be in the interest of its citizens to grant
licenses that could result in federal prosecution. Suppose,
however, that Congress had passed the federal law that the
majority posits, but that federal officers were not enforcing it.
Or suppose further that the federal government had
announced a federal policy decision not to enforce the federal
law against "individuals whose actions are in clear and
unambiguous compliance with existing state laws" permit-
ting minors to drive. Could Oregon not serve as a laboratory
allowing minors to drive on its roads under carefully circum-
scribed conditions to permit them to acquire driving skills
and giving Congress important information that might assist
it in determining whether its policy should be changed? Is not
one of federalism's chief virtues that "a single courageous
State may, if its citizens choose, serve as a laboratory; and try
novel social and economic experiments without risk to the
rest of the country"? See New State Ice Co. v. Liebmann, 285
US 262, 311, 52 S Ct 371, 76 L Ed 747 (1932) (Brandeis, J.,
dissenting) (so contending).

In the case of medical marijuana, the federal govern-
ment in fact has announced that it will not enforce the
Controlled Substances Act against "individuals whose
actions are in clear and unambiguous compliance with exist-
ing state laws permitting the medical use of marijuana."8
Oregon is not the only state that permits the use of medical
marijuana, and at least one state is considering rules to
"identify requirements for the licensure of producers and can-
nabis production facilities." New Mexico's "Lynn and Erin
Compassionate Use Act," 2007 New Mexico Laws, ch 210, § 7
(SB 523).9

8 Memorandum from David W. Ogden, Deputy Attorney General for Selected
United States Attorneys on Investigations and Prosecutions in States Authorizing
the Medical Use of Marijuana (Oct 19, 2009) (available at http://blogs.usdoj.gov/
blog/archives/192) (accessed Apr 6, 2010) (emphasis in original).

9 New Mexico's "Lynn and Erin Compassionate Use Act," 2007 New Mexico
Laws, ch 210, § 7 (SB 523), requires relevant state agencies to develop rules that
"identify requirements for the licensure of producers and cannabis production

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As I explained at the outset, the federal government
has no power to require that the Oregon legislature pass
state laws to implement or give effect to federal policy
choices. One sovereign may make a policy choice to prohibit
and punish conduct; the other sovereign may make a differ-
ent policy choice not to do so and instead to permit, for pur-
poses of state law only, other circumscribed conduct. Absent
express preemption, a particular policy choice by the federal
government does not alone establish an implied intent to pre-
empt contrary state law. A different choice by a state is just
that-different. A state's contrary choice does not indicate a
lack of respect; it indicates federalism at work.

The consequence of the majority's decision that the
Controlled Substance Act invalidates ORS 475.306(1) is that
petitioner is disqualified from the benefits of ORS 659A.124,
which imposes a requirement of reasonable accommodation.
The majority states that it does not decide "whether the leg-
islature, if it chose to do so and worded Oregon's disability
law differently, could require employers to reasonably accom-
modate otherwise qualified disabled employees who use med-
ical marijuana to treat their disabilities." 348 Or at 172 n 12.
Indeed, different words could be used for that purpose. For
instance, the legislature could state expressly in ORS chapter
659A that disabled persons who would be entitled to the

facilities and set forth procedures to obtain licenses," as well as "develop a distri-
bution system for medical cannabis" that comports with certain requirements. The
New Jersey "Compassionate Use Medical Marijuana Act," S119, Approved PL
2009, c 307, § 7, provides for the creation of "alternate treatment centers, each of
which

"shall be authorized to acquire a reasonable initial and ongoing inventory, as
determined by the department, of marijuana seeds or seedlings and parapher-
nalia, possess, cultivate, plant, grow, harvest, process, display, manufacture,
deliver, transfer, transport, distribute, supply, sell, or dispense marijuana, or
related supplies to qualifying patients or their primary caregivers who are reg-
istered with the department pursuant to section 4 of * * * this act."

The Maine Medical Marijuana Act provides for the creation of "nonprofit dispen-
saries" which are authorized to dispense up to two and one-half ounces of mari-
juana to qualified patients. Me Rev Stat title 22, § 2428-7. In Rhode Island, "The
Edward O. Hawkins and Thomas C. Slater Medical Marijuana Act," provides for
the creation of "compassion centers," which "may acquire, possess, cultivate, man-
ufacture, deliver, transfer, transport, supply or dispense marijuana * * * to regis-
tered qualifying patients and their registered primary caregivers." RI Gen Laws
§ 21-28.6-12.

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affirmative defense set forth in ORS 475.319 (a provision the
majority does not find preempted) are not disqualified from
the protections of the Oregon Disability Act, including the
requirement of reasonable accommodation. Or, to be even
more careful, the legislature could state, in chapter 659A, the
conditions that a medical marijuana user must meet to be
entitled to the protections of the Oregon Disability Act with-
out any reference to the Oregon Medical Marijuana Act. If
the legislature took either of those actions, reasonable accom-
modation would not be tied to the provision of the Oregon
Medical Marijuana Act that the majority finds to be of "no
effect."

Although such changes could secure the right of
reasonable accommodation for disabled persons who use
medical marijuana in compliance with Oregon law, the
changes would not eliminate the questions that the major-
ity's analysis raises about the validity of other provisions of
the Oregon Medical Marijuana Act that use words of author-
ization or about the reach of Oregon's legislative authority. If
the majority decision simply represents a formalistic view of
the Supremacy Clause that permits Oregon to make its own
choices about what conduct to punish (and thereby to permit)
as long as it phrases its choices carefully, perhaps my concern
is overstated. But as I cannot imagine that Congress would
be concerned with the phrasing, rather than the effect, of
state law, I not only think that the majority is wrong, I fear
that it wrongly limits the legislative authority of this state. If
it does, it not only limits the state's authority to make its own
medical marijuana laws, it limits the state's authority to
enact other laws that set standards of conduct different than
the standards set by the federal government. Consider just
one statute currently on the books-Oregon's Death with
Dignity Act.

Oregon's Death with Dignity Act affirmatively
authorizes physicians to use controlled substances to assist
suicide.10 In Gonzales v. Oregon, 546 US 243, 126 S Ct 904,

10 ORS 127.815(1)(L)(A) authorizes physicians to dispense medications for the
purpose of ending a patient's life in a humane and dignified manner when that
patient has a terminal illness and has satisfied the written request requirements
that the Act provides. ORS 127.905(1) authorizes a terminally ill patient to "make
a written request for medication for the purpose of ending his or her life in a
humane and dignified manner in accordance with [the Act]."

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163 L Ed 2d 748 (2006), the Supreme Court considered the
validity of a federal Interpretive Rule that provided that
"using controlled substances to assist suicide is not a legiti-
mate medical practice and that dispensing or prescribing
them for this purpose is unlawful under the [Controlled
Substances Act]." Id. at 249. The Supreme Court decided that
the Interpretive Rule was invalid and did not decide whether
the federal rule preempted the Oregon act. But if the federal
government were to adopt a statute or a valid rule to the
same effect, would this court hold that, because the Oregon
Death with Dignity Act grants physicians permission to take
actions that federal law prohibits, the state statute is pre-
empted and of no effect? If so, the court would invalidate a
state law using an analysis that at least three members of the
Supreme Court have recognized to be faulty:

"[T]he [Interpretive Rule] does not purport to pre-empt
state law in any way, not even by conflict pre-emption-
unless the Court is under the misimpression that some
States require assisted suicide."

Gonzales, 546 US at 290 (Scalia, J., joined by Roberts, C. J.
and Thomas, J., dissenting) (emphasis in original).

I do not understand why, in our system of dual sov-
ereigns, Oregon must fly only in federal formation and not, as
Oregon's motto provides, "with her own wings." ORS 186.040.
Therefore, I cannot join in a decision by which we, as state
court judges, enjoin the policies of our own state and preclude
our legislature from making its own independent decisions
about what conduct to criminalize. With respect, I dissent.

Durham, J., joins in this opinion.