Editor’s Note: This story is part of an occasional series on research projects currently in the works at the Law School.

The “unclean hands” doctrine is a longstanding principle stipulating that someone engaged in inequitable conduct cannot obtain equitable relief in court. A simple example might be a landowner who sits silently by while a neighbor mistakenly builds a wall encroaching on the landowner’s property. Then, once the wall is finished, the landowner asks a court to make the neighbor tear it down. His unclean hands will likely bar this remedy.

But does this old doctrine of equity apply to the executive branch just like it does to private litigants? 

Amid controversy over the Trump administration’s continuous efforts to stay or block lower court decisions in situations where its own hands arguably are less than pristine, this is the question that UChicago Law professors William Baude and Samuel L. Bray, '05, seek to answer in their paper, “When the Executive Has Unclean Hands,” set to be published this winter in the Yale Law Journal Forum. Their conclusion: the unclean hands doctrine does indeed apply to the executive, but in a more restrictive way than it would generally.

“The issue is that the executive branch is the way that laws enacted by Congress, which are supposed to benefit all of us, get enforced,” said Baude, the Harry Kalven, Jr. Professor of Law. “Sometimes applying unclean hands to the executive branch penalizes Congress or the people. … So you have to sort out that relationship rather than apply it automatically.”

Amorphous Principles

The paper grew out of conversations between Baude, an expert on the federal courts, and Bray, an expert on the law of equity. The two had noticed that the administration was often asking the Supreme Court to intervene on an equitable basis when there seemed to be a lot of instances where it had acted inequitably.

Bray, who is the Walter Mander Research Scholar, explained: “So you’ve got this old doctrine of equity that says, ‘Look at the behavior of the litigants,’ and you’ve got the behavior of the most important litigant in the federal courts, the US government, which looks like it has unclean hands, and the question is how does this fit together?” 

When they began their research, the biggest challenge the two scholars faced was the fact that not much was written about unclean hands and the executive. An additional challenge was figuring out how to take what Baude describes as “amorphous principles” and say something concrete about them.

“We addressed these challenges through a lot of research and a lot of dialogue between the two of us,” Baude said. “Every day one of us would be in the other person’s office talking through hard points, posing questions and going back and forth until we felt like we had gotten somewhere.”

Bray and Baude also found themselves surprised by the range of answers they encountered, with courts running the gamut from saying the unclean hands doctrine didn’t apply to the executive at all to insisting that it applied more exactingly to the executive than to private parties.

The authors concluded, based on more than two centuries of judicial decisions, that the doctrine applies less expansively to the executive than to private parties. But Bray acknowledged the strength of the argument that it should apply more strongly, given the executive’s extensive powers and the harm it can cause. 

The issue is agency, he said. The government is a very big litigant that often represents the interests of other people, including Congress.

“You could have a situation where Congress can’t have enforcement of its laws because of the conduct of the executive branch, and you don’t want a situation where the unclean hands of the executive branch thwart the people’s will, as expressed in statutes,” Bray explained.

The pair determined in their scholarly paper that for the doctrine to apply, the executive’s own misbehavior must be directly related to the issue being litigated.

Emphasizing that equity must be specific in nature, Baude analogized the situation to a condemned inmate seeking an equitable stay of execution and points out that the fact that the prisoner killed someone isn’t necessarily a barrier to the stay.

“We focus on the lawfulness of the execution and why they’re seeking relief now,” said Baude. “But it’s not a referendum on their life. It couldn’t be.”

On-the-Ground Application

Baude and Bray conclude their essay by applying their findings to a pair of current cases: Department of Homeland Security v. D.V.D—in which the Solicitor General sought a stay of a federal district court order restricting deportations after executive branch officials allegedly violated the order—and United States v. Russell, in which the Department of Justice sued all federal judges in Maryland, demanding an injunction against a local rule that imposed a 48-hour stay of deportations brought before the federal district court.

The scholars believe unclean hands should apply in Russell while it’s less clear that it should have applied in D.V.D., in which the Supreme Court granted the government’s emergency application for stay. According to Baude, the key difference is that in Russell, there was a clear-cut nexus.

“The administration was sneaking around the courts and then going to the courts at the same time,” he said. “That’s unclean hands.”

In D.V.D., he continued, there’s a serious argument that the lower courts were exceeding their jurisdiction, putting the appellate court in a bind.

“The executive has unclean hands, but the district courts maybe do too, in a sense,” said Baude.

Bray acknowledges that the conclusions they draw in their paper don’t go as far as the administration’s challengers might like. While it remains to be seen whether courts and other scholars will be persuaded by their arguments, he sees their job not as influencing litigation but as stating what they think the law is, whichever way that cuts.

Meanwhile, Baude says he hopes the paper helps federal courts remember that part of their job is doing equity.

“That doesn’t always come with tidy rules, but it’s still the law,” he said.