Oklahoma Supreme Court Approves Marijuana Ballot Proposal

The Oklahoma Supreme Court approved a proposal for an amendment to the state constitution legalizing recreational marijuana possession and use to be sent to the voters in November. The proposal came with a set of challenges after plaintiff Paul Tay claimed the proposed amendment would, if passed, violate federal law and the Supremacy Clause of the Constitution.

Tay asserted that the federal Controlled Substances Act (CSA) criminalized all recreational possession and use of marijuana.  Tay proffered that the amendment stood to legalize under state law what federal law prohibited. Theretofore, the Supremacy Clause (which states that when federal law and state law conflict, the federal law prevails) makes said amendment unconstitutional due to its preemption by the CSA.

Tay further alleged that the amendment violated the Racketeer Influenced and Corrupt Organizations Act (RICO).  RICO criminalizes the practice of profiting from the manufacturing, distributing, buying or selling of illegal controlled substances, as designated by the CSA. Tay opined that the amendment forces the state government to violate RICO by mandating the collection of taxes from all recreational marijuana use and possession made legal under the amendment’s terms.

The court held that both arguments lacked merit. Preemption under the Supremacy Clause lacked application to the amendment as the legal test for a federal law to supersede conflicting state law is, absent clear mandate of preemption by Congress, whether “compliance with both federal and state law is a physical impossibility.” This standard, ruled the court, required the amendment to mandate use of marijuana prohibited by the CSA, not just legalize under Oklahoma law what remained illegal under federal law.

Moving to the alleged RICO violations, the court ruled that states retain immunity to prosecution under RICO. Additionally, the court posited, precedent supports the practice of collecting taxes on illegal activity. Thus, the court concluded, “it is axiomatic that if the states and federal government are permitted to tax illegal activity, they are permitted to use the resulting revenue.”