Appeal of Andrew Panaggio ( 2021 )


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    THE SUPREME COURT OF NEW HAMPSHIRE
    ___________________________
    Compensation Appeals Board
    No. 2019-0685
    APPEAL OF ANDREW PANAGGIO
    (New Hampshire Compensation Appeals Board)
    Argued: November 10, 2020
    Opinion Issued: March 2, 2021
    Shaheen & Gordon, P.A., of Manchester (Jared P. O’Connor on the brief
    and orally), for the petitioner.
    Tentindo, Kendall, Canniff & Keefe LLP, of Boston, Massachusetts
    (Robert S. Martin on the brief and orally), for the respondent.
    Robinson & Cole LLP, of Providence, Rhode Island (Dana M. Horton on
    the brief), for American Property Casualty Insurance Association, as amicus
    curiae.
    HICKS, J. The petitioner, Andrew Panaggio, appeals the determination of
    the New Hampshire Compensation Appeals Board (Board) that the respondent,
    CNA Insurance Company (the insurer), cannot be ordered to reimburse him for
    his purchase of medical marijuana because such reimbursement would
    constitute aiding and abetting his commission of a federal crime under the
    Controlled Substances Act (CSA), 
    21 U.S.C. § 801
     et seq. (2018). We reverse
    and remand.
    I. Background
    This case returns to us following our decision in Appeal of Panaggio, 
    172 N.H. 13
     (2019). We repeat the facts set forth in Panaggio as necessary to
    decide the instant appeal.
    Panaggio suffers from ongoing pain as a result of a 1991 work-related
    injury to his lower back. Panaggio, 172 N.H. at 14. He is a qualified patient in
    the State’s therapeutic cannabis program and has a New Hampshire cannabis
    registry identification card. Id.; see RSA 126-X:4 (Supp. 2020). The insurer
    declined to reimburse him for the purchase of medical marijuana on the
    ground that it was not reasonable or medically necessary. See Panaggio, 172
    N.H. at 14. When Panaggio appealed the insurer’s denial to the New
    Hampshire Department of Labor, a hearing officer agreed with the insurer. Id.
    Panaggio appealed the hearing officer’s decision to the Board, which
    unanimously found that his use of medical marijuana is reasonable and
    medically necessary. Id. Nonetheless, the Board upheld the insurer’s refusal
    to reimburse Panaggio, concluding that “the carrier is not able to provide
    medical marijuana because such reimbursement is not legal under state or
    federal law.” Id. (quotations omitted).
    Panaggio appealed the Board’s decision to this court. We concluded that
    the insurer’s reimbursement for the purchase of medical marijuana would not
    violate state law. See id. at 16-17. However, because the Board “did not cite
    any legal authority for its conclusion, much less identify a federal statute that,
    under the circumstances of this case, would expose the insurance carrier to
    criminal prosecution,” we vacated its determination that the reimbursement
    would violate federal law. Id. at 19 (emphasis omitted). We remanded so that
    the Board could “articulate the law that supports [its] legal conclusion” and
    “provide an adequate explanation of its reasoning regarding federal law.” Id.
    On remand, the Board unanimously found that were the insurer “to pay
    for Mr. Panaggio’s prescription medical marijuana it would commit a federal
    crime . . . by aiding and abetting Mr. Panaggio’s illicit purchase and
    possession.” Accordingly, the Board ruled that, under federal preemption
    principles as articulated by the Maine Supreme Judicial Court in Bourgoin v.
    Twin Rivers Paper Co., 
    187 A.3d 10
    , 13-22 (Me. 2018), the insurer could not be
    ordered to reimburse Panaggio for his purchase of medical marijuana. This
    appeal followed.
    II. Analysis
    A. Standards of Review
    We will not disturb the Board’s decision absent an error of law, or
    unless, by a clear preponderance of the evidence, we find it to be unjust or
    2
    unreasonable. Panaggio, 172 N.H. at 15; see RSA 541:13 (2007). The
    appealing party, here Panaggio, has the burden of demonstrating that the
    Board’s decision was erroneous. Panaggio, 172 N.H. at 15. All findings of the
    Board upon questions of fact properly before it are deemed to be prima facie
    lawful and reasonable. Id.; see RSA 541:13. Thus, we review the Board’s
    factual findings deferentially and its statutory interpretation de novo.
    Panaggio, 172 N.H. at 15.
    The issue before us raises a question of federal preemption, which is
    essentially a matter of statutory interpretation and construction. Hendrick v.
    N.H. Dep’t of Health & Human Servs., 
    169 N.H. 252
    , 259 (2016). When
    interpreting a statute, we begin with the language of the statute itself, and, if
    possible, construe that language according to its plain and ordinary meaning.
    
    Id.
     We interpret federal law in accordance with federal policy and precedent.
    
    Id.
    B. Federal Preemption Principles
    The federal preemption doctrine is based upon the Supremacy Clause of
    the United States Constitution, U.S. CONST. art. VI, cl. 2. In the Matter of
    Braunstein & Braunstein 
    173 N.H. 38
    , 41 (2020), cert. denied, No. 20-267,
    
    2020 WL 6551782
     (U.S. Nov. 9, 2020). Article VI provides that federal law
    “shall be the supreme Law of the Land; and the Judges in every State shall be
    bound thereby, any Thing in the Constitution or Laws of any State to the
    Contrary notwithstanding.” U.S. CONST. art. VI, cl. 2.
    “Two basic principles guide all preemption analyses.” Erwin
    Chemerinsky, Jolene Forman, Allen Hopper, & Sam Kamin, Cooperative
    Federalism and Marijuana Regulation, 
    62 UCLA L. Rev. 74
    , 104 (2015). “First,
    the purpose of Congress is the ultimate touchstone in every pre-emption case.”
    Wyeth v. Levine, 
    555 U.S. 555
    , 565 (2009) (quotation omitted). Second, “[i]n all
    pre-emption cases, and particularly in those in which Congress has legislated
    in a field which the States have traditionally occupied, we start with the
    assumption that the historic police powers of the States were not to be
    superseded by the Federal Act unless that was the clear and manifest purpose
    of Congress.” Medtronic, Inc. v. Lohr, 
    518 U.S. 470
    , 485 (1996) (quotations,
    ellipsis, and citation omitted).
    Broadly speaking, there are three different types of federal preemption:
    “express,” “field,” and “conflict.” See Murphy v. National Collegiate Athletic,
    
    138 S. Ct. 1461
    , 1480 (2018). Express preemption occurs when Congress
    “preempt[s] state authority by so stating in express terms.” Pacific Gas & Elec.
    Co. v. Energy Resources Comm’n, 
    461 U.S. 190
    , 203 (1983). “Field preemption
    occurs when federal law occupies a ‘field’ of regulation so comprehensively that
    it has left no room for supplementary state legislation.” Murphy, 
    138 S. Ct. at
                            3
    1480 (quotation omitted). “Conflict preemption” may occur either when “it is
    impossible for a private party to comply with both state and federal
    requirements,” English v. General Electric Co., 
    496 U.S. 72
    , 79 (1990), or when
    compliance with both state and federal laws is possible, Sikkelee v. Precision
    Airmotive Corp., 
    907 F.3d 701
    , 709 (3d Cir. 2018), but state law “stands as an
    impermissible obstacle to the accomplishment and execution of the full
    purposes and objectives of Congress,” Virginia Uranium, Inc. v. Warren, 
    139 S. Ct. 1894
    , 1907 (2019) (plurality opinion) (quotation omitted).
    “[T]hese categories are not rigidly distinct.” 
    Id. at 1901
     (plurality opinion)
    (quotation omitted). However, “at least one feature unites them: Invoking some
    brooding federal interest or appealing to a judicial policy preference should
    never be enough to win preemption of a state law; a litigant must point
    specifically to a constitutional text or a federal statute that does the displacing
    or conflicts with state law.” 
    Id.
     (plurality opinion) (quotation omitted).
    C. Preemptive Reach of the CSA
    Although it is an issue of first impression for this court, other courts
    have considered whether the CSA preempts a state order requiring
    reimbursement of an employee’s purchase of medical marijuana. The results
    are mixed. Compare Bourgoin, 187 A.3d at 12 (concluding that “where an
    employer is subject to an order that would require it to subsidize an employee’s
    acquisition of medical marijuana[,] there is a positive conflict between federal
    and state law, and as a result, the CSA preempts the [Maine Medical Use of
    Marijuana Act] as applied”), with Hager v. M & K Const., 
    225 A.3d 137
    , 140
    (N.J. Super. Ct. App. Div.) (finding no conflict between the CSA and the state
    medical marijuana law where employer is ordered to reimburse employee for
    his purchase of medical marijuana), cert. granted, 
    229 A.3d 20
     (N.J. 2020).
    Because the CSA contains a saving clause, “our task of statutory
    construction must in the first instance focus on the plain wording of the
    clause, which necessarily contains the best evidence of Congress’ pre-emptive
    intent.” Sprietsma v. Mercury Marine, 
    537 U.S. 51
    , 62-63 (2002) (quotation
    omitted). Section 903 of the CSA 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 subject 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.
    
    21 U.S.C. § 903
    .
    4
    Section 903 “is an express invocation of conflict preemption.” Oregon
    Prescription Drug Monitoring v. U.S. Drug, 
    860 F.3d 1228
    , 1236 (9th Cir.
    2017). Some courts have ruled that, given the language in Section 903, the
    CSA preempts a state law only under impossibility preemption, and not under
    obstacle preemption. See Hager, 225 A.3d at 147 (“Congress has expressed its
    intent in the plain language of the CSA that it only preempts a state law that
    requires the performance of an action specifically forbidden by the federal
    statute.”); see also County of San Diego v. San Diego NORML, 
    81 Cal. Rptr. 3d 461
    , 479-80 (Ct. App. 2008) (“Because [Section 903] preserves state laws
    except where there exists such a positive conflict that the two laws cannot
    consistently stand together, the implied conflict analysis of obstacle preemption
    appears beyond the intended scope of [Section 903].” (emphases omitted)).
    Other courts have disagreed. See Oregon Prescription Drug Monitoring, 860
    F.3d at 1236; see also In re State Question No. 807, 
    468 P.3d 383
    , 390 (Okla.
    2020).
    For the purposes of this appeal, we assume without deciding that, even if
    Section 903 refers only to impossibility preemption, we must still analyze
    whether obstacle preemption applies. See Fourth Corner Credit Union v.
    Federal Reserve Bank, 
    861 F.3d 1052
    , 1075 n.11 (10th Cir. 2017) (opinion of
    Bacharach, J.); see also Geier v. American Honda Motor Co., 
    529 U.S. 861
    , 869
    (2000) (‘‘[T]he saving clause . . . does not bar the ordinary working of conflict
    pre-emption principles.’’); Geier, 
    529 U.S. at 873-74
     (“The Court has
    . . . refused to read general ‘saving’ provisions to tolerate actual conflict both in
    cases involving impossibility and in ‘frustration-of-purpose’ cases.” (citation
    omitted)); Wyeth, 
    555 U.S. at
    612 n.4 (Alito, J., dissenting) (describing the
    saving clause in the federal Food, Drug, and Cosmetic Act, which is worded
    similarly to the saving clause in the CSA, as “not a traditional ‘saving clause,’”
    and stating that “even if it were, it would not displace [the Court’s] conflict pre-
    emption analysis”).
    Therefore, we consider whether complying with a Board order requiring
    the insurer to reimburse Panaggio for his medical marijuana purchase and
    complying with the CSA is an impossibility and also whether such an order
    “stands as an obstacle to the accomplishment and execution of the full
    purposes and objectives of Congress” as reflected in the CSA. Oregon
    Prescription Drug Monitoring, 860 F.3d at 1236 (quotation omitted).
    1. Impossibility Preemption
    We first address whether, as the insurer argues and as the Board ruled,
    the insurer cannot be ordered to reimburse Panaggio for his medical marijuana
    purchase because such an order would conflict with the CSA under the
    impossibility preemption doctrine. In other words, we consider whether it is
    impossible for the insurer to comply with both a Board order to reimburse
    Panaggio and the CSA.
    5
    “Impossibility pre-emption is a demanding defense.” Wyeth, 
    555 U.S. at 573
    . It requires the party asserting preemption to show that it is “impossible
    for a private party to comply with both state and federal requirements.” Merck
    Sharp & Dohme Corp. v. Albrecht, 
    139 S. Ct. 1668
    , 1672 (2019) (quotations
    omitted); see Florida Avocado Growers v. Paul, 
    373 U.S. 132
    , 142-43 (1963) (“A
    holding of federal exclusion of state law is inescapable and requires no inquiry
    into congressional design where compliance with both federal and state
    regulations is a physical impossibility . . . .”). Thus, “[w]hen federal law forbids
    an action that state law requires, the state law is without effect.” Mutual
    Pharmaceutical Co. v. Bartlett, 
    570 U.S. 472
    , 486 (2013) (quotation omitted).
    However, for impossibility preemption to apply, the conflict must be actual, not
    hypothetical or speculative. See Exxon Corp. v. Governor of Maryland, 
    437 U.S. 117
    , 131 (1978) (explaining that “the possibility that the Maryland statute
    may require uniformity in some situations in which the [federal statute] would
    permit localized discrimination” is the “sort of hypothetical conflict” that “is not
    sufficient to warrant pre-emption”); see also Solorzano v. Superior Court, 
    13 Cal. Rptr. 2d 161
    , 169 (Ct. App. 1992) (“[M]ere speculation about a
    hypothetical conflict is not the stuff of which preemption is made.”).
    Here, there is no direct conflict between the CSA and a Board order to
    reimburse Panaggio for his medical marijuana purchase. See Vialpando v.
    Ben’s Automotive Services, 
    331 P.3d 975
    , 979 (N.M. Ct. App. 2014). The CSA
    does not criminalize the act of insurance reimbursement for an employee’s
    purchase of medical marijuana.
    Nonetheless, the insurer argues that there is an irreconcilable conflict
    between the CSA, which forbids the possession and use of marijuana, see 
    21 U.S.C. § 844
    (a), and New Hampshire state law, which requires payment of
    reasonable medical treatment causally related to a work injury, see RSA 281-
    A:23, I (2010), here, payment for medical marijuana pursuant to a Board order.
    See Panaggio, 172 N.H. at 16-17; see also RSA 126-X:3, III(a) (2015).
    Consistent with the Board’s determination, the insurer contends that requiring
    it to reimburse Panaggio for the purchase of medical marijuana “would invoke
    conduct that violates federal law” because it constitutes aiding and abetting his
    criminal activity. The insurer argues that, because it is impossible for the
    insurer to comply with both state and federal law, “federal law prevails and
    preempts the conflicting state law requirement.” We are not persuaded.
    Under 
    18 U.S.C. § 2
    (a) (2018), “[w]hoever . . . aids, abets, counsels,
    commands, induces or procures” the commission of a federal crime “is
    punishable as a principal.” “Under § 2, aiding and abetting is not a separate
    federal crime, but rather an alternative charge that permits one to be found
    guilty as a principal for aiding or procuring someone else to commit the
    offense.” United States v. Louis, 602 F. App’x 728, 730 (11th Cir. 2015)
    (quotation omitted). “[T]o convict under a theory of aiding and abetting, the
    government must prove that: (1) the substantive offense was committed by
    6
    someone; (2) the defendant contributed to and furthered the offense; and (3)
    the defendant intended to aid in its commission.” Id.
    The federal aiding and abetting statute “derives from (though simplifies)
    common-law standards for accomplice liability.” Rosemond v. United States,
    
    572 U.S. 65
    , 70 (2014). “As at common law, a person is liable under § 2 for
    aiding and abetting a crime if (and only if) he (1) takes an affirmative act in
    furtherance of that offense, (2) with the intent of facilitating the offense’s
    commission.” Id. at 71.
    “[T]he canonical formulation” of the state of mind needed for aiding and
    abetting “is Judge Learned Hand’s: To aid and abet a crime, a defendant must
    not just ‘in some sort associate himself with the venture,’ but also ‘participate
    in it as something that he wishes to bring about’ and ‘seek by his action to
    make it succeed.’” Id. at 76 (quoting Nye & Nissen v. United States, 
    336 U.S. 613
    , 619 (1949), which quoted United States v. Peoni, 
    100 F.2d 401
    , 402 (2d
    Cir. 1938)). “[F]or purposes of aiding and abetting law, a person who actively
    participates in a criminal scheme knowing its extent and character intends
    that scheme’s commission.” Id. at 77.1
    In Rosemond, the United States Supreme Court explained that “[a]n
    active participant in a drug transaction has the intent needed to aid and abet”
    an offense of using or carrying a firearm during such a transaction “when he
    knows that one of his confederates will carry a gun.” Id. at 67, 77. By
    participating actively in the crime with that knowledge, “he has chosen . . . to
    align himself with the illegal scheme in its entirety — including its use of a
    firearm. And he has determined . . . to do what he can to make that scheme
    succeed.” Id. at 77-78 (quotation and brackets omitted). For liability to attach,
    however, the “defendant’s knowledge . . . must be advance knowledge . . . ,
    knowledge that enables him to make the relevant legal (and indeed, moral)
    choice.” Id. at 78. The defendant must have “knowledge at a time [he] can do
    something with it,” whether that be to go through with the plan, attempt to
    alter it, or “opt to walk away.” Id. He must have knowledge at a point when he
    has a “realistic opportunity to quit the crime.” Id. “[I]t is deciding . . . to go
    ahead with his role in the venture that shows his intent to aid an armed
    offense.” Id.
    Panaggio contends that “[b]ecause state law gives the insurer no
    discretion to choose whether to comply with state law once a finding is made
    that the treatment at issue is reasonable and related to the work injury,” an
    insurer that reimburses a workers’ compensation claimant for the purchase of
    1In Rosemond, the Court distinguished between defendants who actively participate in, and those
    who “incidentally facilitate,” a criminal venture. Rosemond, 572 U.S. at 77 n.8. The Court
    explained that “the owner of a gun store who sells a firearm to a criminal, knowing but not caring
    how the gun will be used,” incidentally facilitates the criminal’s crime. Id.
    7
    medical marijuana is not guilty of aiding and abetting because the insurer
    lacked the requisite mens rea. Panaggio asserts that “[w]hat justifies criminal
    liability for an aider and abettor is that they elect by their own free will to
    participate in the prohibited activity.” Panaggio reasons that “[b]ecause New
    Hampshire law unambiguously requires the insurer to pay for the claimant’s
    medically related treatment,” an insurer that reimburses a claimant for the
    purchase of medical marijuana acts without the volition required by the federal
    aiding and abetting statute.
    Panaggio’s argument finds support in the dissent in Bourgoin and in the
    opinion of the New Jersey Superior Court Appellate Division in Hager. The
    majority in Bourgoin concluded that, by knowingly reimbursing an employee
    for the purchase of medical marijuana, the employer would act “with
    knowledge that it was subsidizing [the employee’s] purchase of marijuana,”
    and, therefore, be guilty of aiding and abetting. Bourgoin, 187 A.3d at 19. The
    dissent disagreed, observing that the employer in such a case would only
    incidentally facilitate the employee’s criminal possession of marijuana and that
    the employer’s mere knowledge would be insufficient to establish the requisite
    intent element of aiding and abetting. Id. at 27 (Jabar, J., dissenting); see
    Rosemond, 572 U.S. at 77 n.8 (distinguishing between “defendants who
    incidentally facilitate a criminal venture” and those who “actively participate in
    it”). Rather, the dissent asserted, the employer “must wish or desire to bring
    about” the crime in order to establish the requisite intent. Bourgoin, 187 A.3d
    at 27 (Jabar, J., dissenting); see Nye, 
    336 U.S. at 619
     (“In order to aid and abet
    another to commit a crime it is necessary that a defendant in some sort
    associate himself with the venture, that he participate in it as in something
    that he wishes to bring about, that he seek by his action to make it succeed.”
    (quotation omitted)).
    The New Jersey Superior Court Appellate Division in Hager concluded
    similarly to the dissenting justices in Bourgoin. See Hager, 225 A.3d at 148.
    There, the court ruled that an employer “complying with an order requiring it
    to reimburse a person for the legal use of medical marijuana” lacked “the
    requisite intent and active participation necessary for an aiding and abetting
    charge.” Id. We agree with the reasoning of the dissenting justices in Bourgoin
    and with the New Jersey Superior Court Appellate Division in Hager and
    conclude that the insurer in this case, if ordered to reimburse Panaggio’s
    purchase of medical marijuana, would not be guilty of aiding and abetting
    Panaggio’s violation of the CSA because the insurer would not be an active
    participant with the mens rea required by Rosemond.
    The insurer asserts, in effect, that Panaggio’s argument leads to an
    absurd result, observing that “[c]onflict preemption applies because state law
    requires what federal law forbids.” (Emphasis added.) The insurer contends
    that Panaggio’s mens rea argument “attempts to use the existence of the
    conflict to defeat the conflict.” However, the insurer’s reasoning misses the
    8
    mark. If the CSA expressly forbade the insurer from reimbursing Panaggio for
    his medical marijuana purchase, then the insurer would be correct. In that
    case, federal law, the CSA, would indeed forbid what state law requires. But
    the CSA does not forbid reimbursement. There is no impossibility here unless,
    by reimbursing Panaggio, the insurer is guilty of aiding and abetting Panaggio’s
    violation of the CSA. Panaggio’s point is that the insurer is not guilty of aiding
    and abetting because it lacks the requisite mens rea.
    For similar reasons, we also conclude that, contrary to the insurer’s
    contention during the Board proceedings, the insurer would not be guilty of
    conspiring with Panaggio to commit an offense under the CSA. See 
    21 U.S.C. § 846
    . Although the Board had no need to reach this issue, we decide it in the
    first instance because it involves an issue of law. Conspiracy, similar to aiding
    and abetting, requires voluntary participation. See United States v. Griffith,
    
    928 F.3d 855
    , 869 (10th Cir. 2019) (setting forth the elements of conspiracy,
    which include the defendant’s knowing and voluntary participation in the
    conspiracy). As discussed, the insurer’s compliance with a court or Board
    order to reimburse Panaggio for his medical marijuana purchase does not
    constitute voluntary participation.
    2. Obstacle Preemption
    Having concluded that a Board order requiring the insurer to reimburse
    Panaggio for the purchase of medical marijuana is not barred by impossibility
    preemption, we next consider whether it would thwart the purposes and
    objectives of the CSA. “A [party] making an argument under obstacle
    preemption faces a heavy burden.” Noffsinger v. SSC Niantic Operating Co.
    LLC, 
    273 F. Supp. 3d 326
    , 333 (D. Conn. 2017).
    “The Supreme Court has found obstacle preemption in only a small
    number of cases.” In re Volkswagen “Clean Diesel” Marketing, Sales, 
    959 F.3d 1201
    , 1212 (9th Cir. 2020), petition for cert. filed, (U.S. Jan. 21, 2021) (No. 20-
    994). “First, where the federal legislation at issue involved a uniquely federal
    area of regulation, the Court has inferred a congressional intent to preempt
    state laws that directly interfered with the operation of the federal program.”
    
    Id.
     (quotations and brackets omitted); see Chamber of Commerce of United
    States of America v. Whiting, 
    563 U.S. 582
    , 604 (2011) (plurality opinion).
    “Second, the Court has inferred that Congress made a considered judgment or
    a deliberate choice to preclude state regulation when a federal enactment
    clearly struck a particular balance of interests that would be disturbed or
    impeded by state regulation.” In re Volkswagen “Clean Diesel” Marketing,
    Sales, 959 F.3d at 1212 (quotations omitted); see Geier, 
    529 U.S. at 879-81
    (holding that certain federal safety regulations “deliberately sought a gradual
    phase-in” of airbags to give manufacturers more time and increase public
    acceptance, and that state tort law requiring the immediate installation of
    9
    airbags would have “stood as an obstacle” to the phase-in program “that the
    federal regulation deliberately imposed”).
    “Absent such circumstances, the Supreme Court has frequently rejected
    claims of obstacle preemption.” In re Volkswagen “Clean Diesel” Marketing,
    Sales, 959 F.3d at 1213. For instance, the Court has declined to infer that
    Congress intended to preempt state law merely because it overlaps with a
    federal act. Id. This is particularly so “when the federal statute expressly or
    impliedly preserves state laws that might overlap with a federal statute.” Id.;
    see Whiting, 
    563 U.S. at 607
     (plurality opinion). Thus, “[t]he mere fact of
    ‘tension’ between federal and state law is generally not enough to establish an
    obstacle supporting preemption, particularly when the state law involves the
    exercise of traditional police power.” Madeira v. Affordable Housing
    Foundation, Inc., 
    469 F.3d 219
    , 241 (2d Cir. 2006); see Wyeth, 
    555 U.S. at 575
    (“The case for federal pre-emption is particularly weak where Congress has
    indicated its awareness of the operation of state law in a field of federal
    interest, and has nonetheless decided to stand by both concepts and to tolerate
    whatever tension there is between them.” (quotation and brackets omitted)).
    Obstacle preemption “analysis does not justify a freewheeling judicial
    inquiry into whether a state statute is in tension with federal objectives; such
    an endeavor would undercut the principle that it is Congress rather than the
    courts that pre-empts state law.” Whiting, 
    563 U.S. at 607
     (plurality opinion)
    (quotations omitted). “[A]ny evidence of pre-emptive purpose, whether express
    or implied, must therefore be sought in the text and structure of the [federal]
    statute at issue.” Virginia Uranium, Inc., 
    139 S. Ct. at 1907
     (plurality opinion)
    (quotations and brackets omitted). We cannot rely upon “unenacted purposes
    and objectives” that we infer motivated Congress because “in piling inference
    upon inference about hidden legislative wishes we risk displacing the legislative
    compromises actually reflected in the statutory text.” 
    Id. at 1908
     (plurality
    opinion). Indeed, “[t]he only thing a court can be sure of is what can be found
    in the law itself.” 
    Id.
     (plurality opinion). Therefore, Supreme Court “precedents
    establish that a high threshold must be met if a state law is to be pre-empted
    for conflicting with the purposes of a federal Act.” Whiting, 
    563 U.S. at 607
    (plurality opinion) (quotation omitted).
    According to the Court, “[t]he main objectives of the CSA were to conquer
    drug abuse and to control the legitimate and illegitimate traffic in controlled
    substances.” Gonzalez v. Raich, 
    545 U.S. 1
    , 12 (2005); see Pub. L. No. 91-513,
    
    84 Stat. 1236
     (1970) (setting forth the complete title of the “Comprehensive
    Drug Abuse Prevention and Control Act of 1970” of which the CSA is a part);
    see also 
    21 U.S.C. § 801
     (setting forth congressional findings). “Congress was
    particularly concerned with the need to prevent the diversion of drugs from
    legitimate to illicit channels.” Raich, 
    545 U.S. at 12-13
    .
    10
    “To effectuate these goals, Congress devised a closed regulatory system
    making it unlawful to manufacture, distribute, dispense, or possess any
    controlled substance except in a manner authorized by the CSA.” 
    Id. at 13
    ; see
    
    21 U.S.C. §§ 841
    (a)(1), 844(a). “The CSA categorizes all controlled substances
    into five schedules.” Raich, 
    545 U.S. at 13
    . “The drugs are grouped together
    based on their accepted medical uses, the potential for abuse, and their
    psychological and physical effects on the body.” 
    Id.
     “Each schedule is
    associated with a distinct set of controls regarding the manufacture,
    distribution, and use of the substances listed therein.” 
    Id. at 14
    .
    “In enacting the CSA, Congress classified marijuana as a Schedule I
    drug.” Id.; see 
    21 U.S.C. § 812
    (c). “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.”
    Raich, 
    545 U.S. at 14
    ; see 
    21 U.S.C. § 812
    (b)(1). “By classifying marijuana as a
    Schedule I drug, as opposed to listing it on a lesser schedule, the manufacture,
    distribution, or possession of marijuana became a criminal offense, with the
    sole exception being use of the drug as part of a Food and Drug Administration
    preapproved research study.” Raich, 
    545 U.S. at 14
    ; 
    21 U.S.C. §§ 823
    (f),
    841(a)(1), 844(a).
    The insurer argues, in a single sentence, that requiring it “to reimburse
    [Panaggio] would frustrate Congress’s intent to control and regulate the traffic
    and use of controlled substances.” However, we are unable to discern how
    such reimbursement would stand “as an impermissible obstacle to the
    accomplishment and execution of the full purposes and objectives of
    Congress.” Virginia Uranium, Inc., 
    139 S. Ct. at 1907
     (plurality opinion)
    (quotation omitted). As previously discussed, the CSA does not make it illegal
    for an insurer to reimburse an employee for his or her purchase of medical
    marijuana. Cf. Noffsinger, 273 F. Supp. 3d at 330, 334 (considering whether
    the CSA preempts a state law provision precluding certain forms of
    employment discrimination against medical marijuana users, court observes
    that “[t]he CSA . . . does not make it illegal to employ a marijuana user”). Nor
    does it purport to regulate insurance practices in any manner. Cf. id. (noting
    that the CSA does not “purport to regulate employment practices in any
    manner”). Moreover, a Board order to reimburse Panaggio does not interfere
    with the federal government’s ability to enforce the CSA. Regardless of whether
    the insurer is ordered to reimburse Panaggio for his medical marijuana
    purchase, the federal government is free to prosecute him for simple
    possession of marijuana under the CSA. See 
    21 U.S.C. § 844
    (a). Under these
    circumstances, we conclude that the “high threshold” for obstacle preemption
    “is not met here.” Whiting, 
    563 U.S. at 607
     (plurality opinion) (quotation
    omitted).
    11
    For all of the above reasons, therefore, we reverse the Board’s decision
    and remand for further proceedings consistent with this opinion.
    Reversed and remanded.
    BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.
    12