Under the rule, parties are not to file motions seeking emergency relief “unless there is an emergency sufficient to justify disruption of the normal appellate process.” Further, the nature of the emergency is to be specified. I don’t see that in the government’s motion — the closest the argument comes on this point is at pages 20-21 — but the argument here is cursory and formulaic. Rather, it seems to me, the motion as a whole simply foreshadows the substantive argument the government will make to the court in due course on appeal.

Accordingly, unless the motions panel were to deny the stay based on the absence of an “emergency,” the court’s ruling on the stay could in theory be a predictor of the outcome of the appeal. As I read the Fifth Circuit internal operating procedures, however, the stay motion will be referred to a standing motions panel of the court separate from the three-judge panel that will hear the appeal. We will simply have to stay tuned in to each stage of this critically important case.

[Oh, we will, we will. I suspect that the Fifth Circuit will cast a skeptical eye on an emergency stay request, especially since the harms that actually fall within the government’s authority are addressed by the exceptions in Doughty’s injunction. The real emergency is for those who should be under the protection of the First Amendment, not the effort to violate it. — Ed]