“If these states are added to the roster of jurisdictions allowing the use of medical marijuana the total will swell to 29, well over half of the jurisdictions in the United States,” Donahoe wrote, adding that he’s wondering if this “grassroots movement” at the state level ought to impact the federal government.

“The Constitution does not cast the states as mere puppets of the central federal government. The structure of our republic presupposes that the federal government is one of limited powers, not because it chooses to be, but because the Constitution says it is,” he wrote.

In its own motion this week, government prosecutors said that while Donahoe is trying to raise constitutional issues, among others, he’s just putting up a smokescreen.

“The intertwined subjects of medical marijuana, Montana law and medical necessity have no relevance to determining whether the government has proven the crimes charged in the indictment,” Assistant U.S. Attorney Joseph Thaggard wrote in his legal brief. “Marijuana is a Schedule I controlled substance under federal law. Unlike drugs in other schedules … Schedule I drugs cannot be dispensed under a prescription.”