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 enforcement. Therefore, neither the Oregon act nor any provision thereof stands as an obstacle to the federal act. Because the *191majority 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 medical 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 preemption 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occupied,” the Court “start[s] with the assumption that the historic police powers of the States were not to be superseded *192by the Federal Act unless that was the clear and manifest purpose of Congress.”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 ellipsis 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 provision. 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 *193475.005 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 Schedule I drugs, including marijuana. ORS 475.840; ORS 475.856 - 475.864. Oregon also enacted the Oregon Medical Marijuana 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 federal 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 substance. 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 government chooses to take action against patients or caregivers 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 medical use of marijuana [in compliance with the terms of the Act] is excepted from the criminal laws of the state for possession, delivery or production of marijuana, aiding and abetting another in the possession, delivery or production of marijuana or any other criminal offense in which possession, 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 *194that 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 practical 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 medical 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 *195Marijuana Act that exempt persons from state criminal liability 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 exceptions or exemptions, nor do they permit the violation of federal 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 different 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 conduct 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 number of subsections that use words of authorization. Those subsections 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 marijuana 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 *196certain 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 person 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 designated 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 liability, 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 persons who possess marijuana “in amounts permitted under ORS 475.320.” (Emphasis added.) ORS 475.320(l)(a) provides: “A registry identification cardholder * * * may possess *197up 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 effectuate 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 permit, 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 conduct 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 necessitating a finding of implied preemption. In State v. Rodriguez, 317 Or 27, 854 P2d 399 (1993), this court recognized that state and federal laws can prescribe different standards, 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 federal 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 constitution not to impose requirements on arrests by federal officers, the state and the federal law did not conflict:
*198“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 ‘preempted’ 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 proposition 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) affirmatively 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 reasons. 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 create 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 conduct, state law may set different standards for the same conduct 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.
*199Michigan 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 exercise of the right conferred by the act by precluding an agricultural 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 created 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 preemption analysis, the conflict between Section 4 of the federal *200Clayton 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 pursue federal goals when enacting their own laws:
“It is one thing to consider the congressional policies identified in Illinois Brick and Hanover Shoe in defining what sort of recovery federal antitrust law authorizes; it is something 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 defendant 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 complied. 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 regulation 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 *201statute 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 conflicting 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 avocados 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 federal 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 renders 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 *202the 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 implying 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 obstacles 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 ¿/Congress had authority to make such a law and ¿/Congress expressly preempted 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 preemption 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 minimum age for its drivers, then the Oregon driver licenses it issued would give 16-year-olds only state permission to drive. *203The 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 matter, 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” permitting minors to drive. Could Oregon not serve as a laboratory allowing minors to drive on its roads under carefully circumscribed 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 government in fact has announced that it will not enforce the Controlled Substances Act against “individuals whose actions are in clear and unambiguous compliance with existing 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 cannabis production facilities.” New Mexico’s “Lynn and Erin Compassionate Use Act,” 2007 New Mexico Laws, ch 210, § 7 (SB 523).9
*204As 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 different policy choice not to do so and instead to permit, for purposes 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 preempt 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 legislature, if it chose to do so and worded Oregon’s disability law differently, could require employers to reasonably accommodate otherwise qualified disabled employees who use medical 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 *205affirmative 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 without any reference to the Oregon Medical Marijuana Act. If the legislature took either of those actions, reasonable accommodation 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 majority’s analysis raises about the validity of other provisions of the Oregon Medical Marijuana Act that use words of authorization 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, *206163 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 legitimate 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 preempted 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 sovereigns, 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.Consistent with the Attorney General’s letter opinion, ORS 475.300(4) provides 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 necessary to protect patients and their doctors from criminal and civil penalties!.]” (Emphasis added.)
The question that the Oregon Attorney General answered in the letter opinion 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 substance,” 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 hut 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 differentiate between provisions of the act that authorize medical marijuana use and those that create an exemption from state prosecution. In fact, the Attorney General specifically 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).
The majority expressly leaves that question open, however. 348 Or at 172 n 12.
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.
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 regulating drugs.’ ” Id. at 1200.
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 persons to drive, would withstand a Supremacy Clause challenge.
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).
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 *204facilities and set forth procedures to obtain licenses,” as well as “develop a distribution 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 paraphernalia, 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 registered with the department pursuant to section 4 of * * * this act.”
The Maine Medical Marijuana Act provides for the creation of “nonprofit dispensaries” which are authorized to dispense up to two and one-half ounces of marijuana 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, manufacture, deliver, transfer, transport, supply or dispense marijuana * * * to registered qualifying patients and their registered primary caregivers.” RI Gen Laws § 21-28.6-12.
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].”