Emerald Steel Fabricators, Inc. v. BOLI OF LABOR AND INDUSTRIES

The Oregon Medical Marijuana Act authorizes persons 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, 21USC § 801 et seq., prohibits the manufacture, distribution, dispensation, and possession of marijuana even when state law authorizes its use to treat medical conditions. 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 employment discrimination laws, employer was not required to accommodate employee’s use of medical marijuana. Accordingly, 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 condition. None of those drugs proved effective for an extended period of time, and some had negative effects. In 1996, *162employee 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 “[mjarijuana 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 identification 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 possession, 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 *163that he would have to pass a drug test as a condition of permanent 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 documentation from his physician. In response to a question from his supervisor, employee said that he had tried other medications but that marijuana was the most effective way to treat his condition. Neither employee’s supervisor nor anyone else in management engaged in any other discussion with employee regarding alternative treatments for his condition. 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 reasonable 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 administrative law judge (ALJ) issued a proposed order in which he found that employee was a disabled person within the meaning of ORS chapter 659A but that employer had not discharged 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 failing to reasonably accommodate the “known physical or mental limitations of an otherwise qualified disabled person,” and from denying employment opportunities to an otherwise *164qualified disabled person when the denial is based on the failure “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 commissioner 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 argument 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 currently engaged in the illegal use of drugs, and the federal Controlled Substances Act prohibits the possession of marijuana without regard to whether it is used for medicinal purposes. 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 consistently with the ADA, then ORS 659A.112 also does not apply to persons who are currently engaged in medical marijuana 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 preserved 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:

*165“Oregon law prescribes that ORS 659A.112 be construed 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 permit 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 specifically 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 federal 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 specific, its fifth affirmative defense is sufficient to raise the statutory 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. However, 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 foreclosed 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 affirmative 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 matter of state law, the employee’s medical use of marijuana was “not unlawful” for the purposes of a federal statute that prohibits 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” *166and 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 affirmative 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 conclusion 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, manufacture, 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 *167[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 invalidates 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 person 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 judicial review in the Court of Appeals. To be sure, employer’s fifth affirmative defense, as pleaded, turned solely on a question of statutory interpretation. Employer did not raise the preemption issue or argue that federal law required a particular 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

*168As noted, the Court of Appeals reached a different conclusion regarding preservation, and we address its reasoning 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 arguments before the agency.6

*169Having concluded that employer preserved the issues it sought to raise on judicial review, we turn to the merits of those issues.7 Employer’s statutory argument begins with ORS 659A. 124(1), which provides that “the protections 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 currently 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 violated ORS 659A.112(2)(e) and (f) by failing to engage in a “meaningful interactive process,” ORS 659A.124 is inapposite. We reach precisely the opposite conclusion. The commissioner explained that engaging in a “meaningful interactive 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 protections of ORS 659A.112 do not apply” to an employee who is currently engaged in the illegal use of drugs, if the employer *170takes 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 “meaningful 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 recognizes, as it must, that the federal Controlled Substances Act prohibits possession of marijuana even when used for medical 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:

‡ ‡ íj: j}:

“(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 professional, 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 *171first 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 provisions of state * * * law” and (2) the exclusion for “the use of a drug taken under supervision of a licensed health care professional.” 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” subject to certain restrictions. ORS 475.302(10), in turn, defines a registry identification card as “a document * * * that identifies a person authorized to engage in the medical use of marijuana.” Reading those two subsections together, we conclude 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 exclusions from the “illegal use of drugs” in ORS 659A.122(2).11

*172Employer 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 preempts 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 preempts the Oregon Medical Marijuana Act to the extent that state law affirmatively authorizes the use of medical marijuana.

The United States Supreme Court recently summarized 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 statute’s express language or through its structure and purpose. 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 *173federal 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 preemption, we begin our analysis ‘with the assumption that the historic police powers of the States [are] not to be superseded 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, distribution, 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, *174because 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 project.” 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 manufacture, distribution, and possession, 21 USC § 841(a)(1). Categorizing 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 (citing 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 marijuana, 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 criminal penalties, to the exclusion of any State law on the same *175subject matter which would otherwise be within the authority 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.”

21USC § 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 provision, 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 LEd 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 example, in Barnett Bank v. Nelson, 517 US 25, 116 S Ct 1103, 134 *176L Ed 2d 237 (1996), the question was whether “a federal statute 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 inconsistent, 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 physical 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 federal 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 decisions typically have turned on the second prong of implied preemption analysis — whether state law “stands as an obstacle 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 permitted 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 permission to do so.” Barnett Bank, 517 US at 31 (emphasis in original). Having considered the text and history of the federal statute and finding no basis for implying such a limited permission, the Court held that the state statute was preempted. Id. <