One might assume that the legal system would allow people to do something when the government acts illegally. And for a time, it did: Back in 1971, the Supreme Court ruled that people may generally sue federal agents, including immigration officers, who violate their constitutional rights, even if there’s no law explicitly authorizing a remedy. The majority in Bivens v. Six Unknown Named Agents reasoned that the Constitution’s guarantees would be meaningless if people couldn’t seek redress when the government infringed their rights, so the Constitution must implicitly empower people to sue for relief.

That rationale made too much sense for the conservative legal movement, which has spent the past decade putting up significant roadblocks on the path that Bivens paved toward accountability. In 2017, for instance, the Court blocked a group of people from suing prison officials and high-ranking Department of Justice officials after the government detained them for months in horrid conditions on suspicion of terrorism but without actual charges. The majority in Ziglar v. Abbassi noted that the Court hadn’t recognized an implied right to sue under Bivens “for the past 30 years,” and said that doing so “is now a disfavored judicial activity.”

In 2020, the Court decided Hernandez v. Mesa, a case about a Customs and Border Patrol agent on the U.S. side of the border who shot and killed a 15-year-old boy on the Mexico side of the border. In Hernandez, the Court blocked the boy’s grieving parents from suing the agent. Justice Samuel Alito wrote for the majority that the lawsuit was “unlike any previously recognized Bivens claim” because a cross-border shooting claim had “foreign relations and national security implications,” and the Court should not expand Bivens to a “new context.”

Most recently, in 2022, the Court blocked a man from suing a Border Patrol agent who threw him against a vehicle and then onto the ground, and later targeted him with a tax audit. Justice Clarence Thomas wrote for the majority in Egbert v. Boule that this, too, was “a new context.” Worse still, Thomas wrote that judges should dismiss a Bivens claim if there is “any rational reason (even one)” to think that Congress—and not the Court—should decide whether there should be a remedy for a constitutional rights violation. To clear up any doubt, Thomas said the result of such an inquiry would be dismissal “in most every case.”

In each of these cases, the Supreme Court’s invocations of faux judicial modesty deprived people of legal means to vindicate their rights against the government. Congress could override the Court by passing a law to authorize Bivens-style actions, but lawmakers have yet to act on such legislation. And without accountability mechanisms, the ACLU’s report on immigration enforcement notes, abuse is “more likely to recur.”

Right now, immigration agents are terrorizing people and getting off scot-free. This is an impunity problem that the Supreme Court helped create. But a sufficiently motivated Congress could address it, in part by literally making immigration agents pay for what they’ve done.