in touby, they made exactly the same argument. they said, look, you can't delegate to the executive branch which substances will be controlled under the act because they're both defining what's illegal to possess and they're prosecuting you. and in touby, you said, no, not for non-delegation purposes. that controls from one branch to the other. not where the power is allocated within the executive branch. and even more to the point, in loving, there was the availability of the death penalty. the president was just specifying aggravating factors nowhere to be found in the statute, and this court, where you were actually -- the executive was actually defining the criminal penalty, which is not what the executive has done here. this court said we've upheld delegations whereby -- this is at page 768 of loving -- we've upheld delegations where the executive defines by regulation what conduct will be criminal, so long as congress has created the criminal offense -- justice breyer: that -- those are the standards, quite right. mr. wall:

were defining the elements of the offense or defining the criminal punishment, that would raise the touby question. but where the attorney general or the executive official is defining a civil requirement, as with the '34 act, to which criminal consequences can possibly attach, that falls squarely inside a handful of cases where the court has proved exactly that. so i think the court can set aside the tougher case than this one where congress hasn't defined the elements of the offense and fixed the punishment itself but left those things to aside the tougher case than this the executive branch. i do want to say just a word about the harms here before i sit down so that we all understand what's in play. eighteen jurisdictions have substantially implemented sorna. the executive branch. of the remaining 32 states, 26 of them have taken federal funds and are attempting to substantially implement, but they're not there yet. if petitioner prevails, i believe, though petitioner's briefs don't say, that all of their arguments translate not just from the pre-act offender clause but also to the pre