The angry populism that forced Zoe Baird to withdraw her nomination as attorney general was expressed as a syllogism. She had broken "the law" (which law, no one was precisely sure); therefore she was not fit to lead the Department of Justice. Taking their cue from their constituents, the senators who demanded Baird's repentance were equally legalistic. "To me this is a big deal, personally," said Senator Joseph Biden, "and I suspect it is to a lot of Americans." "A technical or theoretical violation?" asked Senator Alan Simpson, incredulously. "Well, if that's true, then we should do something."
The sanctimony is absurd. In 1986, when Simpson co-sponsored the immigration law that Baird broke, he made it clear that he never expected it to be enforced against people who hired undocumented housekeepers. And many of the civil rights leaders who denounced Baird had been lobbying Congress to repeal the provisions she violated. The unacknowledged subtext of the Baird hearings concerns race, not law, and it threatens to confuse the debate about immigration policy in the next decade.
Most of the public criticism of Baird focused on the fact that she had failed to pay her share of Social Security and employment taxes for a Peruvian couple she employed. (Her lawyer mistakenly told her that it is not possible to start a Social Security account for aliens.) But the more important law that Baird broke was the Immigration Reform and Control Act of 1986, which made it illegal to hire aliens in the first place. Named after its sponsors, the Simpson-Mazzoli act was the most dramatic change in U.S. immigration policy in thirty-five years. Before 1986 it had been illegal for undocumented aliens to work in the United States, but not illegal for employers to hire them. By threatening to impose tough fines on employers who "knowingly" hire undocumented workers, Congress promised to "regain control of American borders." But by making it clear that the penalties were not intended to be vigorously enforced, it managed to keep the borders relatively open at a time of increasing popular pressure to restrict them.
When the law was first proposed, according to Charles Gordon, then general counsel of the Immigration and Naturalization Service, there was "an explosion of indignation" in Congress at the idea that the government would be put in the business of "going after housewives." Gordon says he assured the House immigration subcommittee that "we don't intend it to apply to housewives." In the course of the debate, Congress rejected a "Beverly Hills amendment," which would have exempted all households with three or fewer domestic servants. (The exemption was considered unfair to small businesses.) Instead, Congress carved out a more modest exception for "casual hires," which the INS defines as those who "provide domestic service in a private home that is sporadic, irregular or intermittent."
If Baird had hired the Peruvians as once-a-month housekeepers, in other words, she would not have violated the immigration laws after all. Live-in nannies, on the other hand, are covered. But in deference to Congress's intentions, Alan Nelson, commissioner of the INS, issued a 1987 directive saying that the INS would not target private households, focusing its enforcement efforts on firms instead. The Labor Department also decided to wink at the nannies: when employers file for green cards, as Baird did for her employees, the Labor Department almost never passes the information on to the INS. In short, when Baird's lawyer told her "that the processes set up by the Labor Department and the INS gave tacit approval to this sort of situation," he was accurately stating government policy.
Of course, the fact that Baird knew she would never be prosecuted for breaking the immigration law doesn't excuse the fact that she broke it. An attorney general should be a legal formalist, not a legal realist. But it makes the serf-righteousness of senators like Simpson particularly ludicrous.
Furthermore, by focusing on legalisms, the senators managed to avoid the racial subtext of the popular backlash against Baird: the fact that many blacks and Hispanics fear losing jobs to undocumented aliens. A 1983 poll found that 69 percent of blacks and 56 percent of Hispanics said that immigration is a "major problem" because aliens "take away jobs that citizens might take." A 1990 survey of Hispanics found majorities as high as 80 percent insisting that there was "too much immigration" because they fear economic competition from more recent immigrants. It is no coincidence that the first public figures to call for Baird's withdrawal were black civil rights leaders like Barbara Jordan, who argued that Baird should be punished for violating a law that other working women, with far fewer means and less education, obey. Implicit in the criticism was resentment of Baird for hiring undocumented Hispanics rather than African Americans. "Descended from people who once did domestic work," Patricia King of Georgetown Law School wrote obliquely in The Washington Post, "I know that payment of Social Security taxes is essential for people with that kind of meager income to ward off destitution in old age."
Before the Baird hearings, however, most black and Hispanic leaders had taken a very different position on tough immigration enforcement. The NAACP and the Mexican American Legal Defense Fund recently urged Congress to repeal the law that Baird violated, in light of (hotly disputed) evidence that it has increased discrimination against job applicants who look foreign. Bowing to the NAACP's concerns, Senators Edward Kennedy and Orrin Hatch recently introduced a bill to repeal the heart of Simpson-Mazzoli.
In light of the Baird hearings, it will be harder for civil rights leaders to press their argument that fear of sanctions leads employers to discriminate against people who look like undocumented Hispanics. For in the nanny market, at least, the undocumented Hispanics are clearly preferred. Jacqueline Hagan of the University of Houston, an authority on the sociology of nannies, conducted a recent study for the Department of Labor about the effects of the Simpson-Mazzoli law on live-in housekeepers in Houston. Hagan found that undocumented Hispanics are seen as "more passive, more loyal and less hostile" than Mexicans and African Americans. "The women I interviewed would many times say, 'We prefer having a Guatemalan or a Salvadoran or a Peruvian to a Mexican-American or an African American.' They're less trouble .... Employers have all sorts of stereotypes. Mexicans drink and have their boyfriends over. Blacks steal."
Here is a representative employer quoted in Hagan's study:
I've had many girls clean my house, both Salvadoran and Mexican ..... Anna, my Guatemalan, is more responsible with my child .... Mexicans are always on the phone. They have guys over when you're out of the house and eat things without asking .... Guatemalans are ... more loyal, and they don't show their temper. They just make better workers.
It would be unfair to assume that Baird shared these crude attitudes. But her inability to find an "appropriate" nanny among the New Haven residents who answered her newspaper ad raises troubling questions about race and class in a mostly black city. The euphemism conceals all sorts of painful reasons why many white baby boomers are uncomfortable hiring blacks to care for their children: from persistent stereotypes to queasiness about being served by blacks in the shadow of Jim Crow. (The ambivalence goes both ways: Hagan reports that African Americans are increasingly unwilling to do live-in domestic work at the going rate for undocumented workers.)
Nevertheless, Baird's efforts to apply for a green card on her nanny's behalf look scrupulous in comparison to many employers. According to Hagan's study, many couples are so afraid of being forced to pay Social Security penalties that they are reluctant to sponsor their nannies for citizenship at all. "In one case in River Oaks," Hagan recalls, "where there's mansion after mansion, this poor woman was going from door to door, asking the neighbors to certify that they'd seen her on the street, because her employer's husband was a lawyer and was afraid of the tax penalties if he acknowledged her. It's a catch-22."
This, then, is one of the perverse effects of Simpson-Mazzoli: because undocumented women are more likely than men to find household jobs that the INS has decided not to target, the flow of women aliens has increased dramatically since 1988. At the same time, because many employers refuse to acknowledge their nannies for fear of tax penalties, the nannies are unable to take advantage of the amnesty provisions to which they are legally entitled. The result is a kind of indentured servitude, in which nannies can enter the underground economy but can't escape from it.
Despite its perversities, Peter Schuck of Yale Law School suggests, the Simpson-Mazzoli law has arguably achieved its unspoken goal: sustaining a basically liberal immigration policy by threatening sanctions that were never intended to be enforced. Zoe Baird, in other words, is a victim of Congress's conflicted intentions. But .it is easier to scapegoat Baird than to confront the national ambivalence about open borders, and the bigotries and realities that underlie it.
Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.