However, Xi and his legal team face recent Supreme Court precedents that make it exceptionally hard to sue federal officials for damages for violations of constitutional rights, said Shirin Sinnar, a law professor at Stanford University who specializes in civil rights and national security.

One important milestone began developing in 2002, when federal officials arrested a lot of Middle Eastern and South Asian men, and held them for months in a maximum security prison where guards would beat them. In 2017, the Supreme Court ruled these people could not sue the federal officials over this because they were really challenging national security policy decisions, and should take it up with Congress. Sinnar said that essentially meant the people have no legal remedy, considering how difficult it is to get any legislation through Congress.

“The court does say, well, just broadly, anything to do with the border somehow has something to do with national security. And when you have that kind of really broad conception of national security, it means that … a lot of claims for misconduct end up getting stifled,” Sinnar said.

Sinnar said this line of inquiry also involves unsettled questions. On the one hand, she said courts have said that federal agents should be allowed to make judgments as part of their jobs and should not be sued for that. But on the other hand, other courts have also found that this exception cannot apply when it comes to constitutional violations. The Supreme Court has yet to address this.