I'm intrigued by the measure at issue in the California Dormant Commerce Clause case I mentioned the other day.
If I understand it correctly, based on the complaint, here's how thing went. First, the California voters passed a referendum requiring that egg producers in California use larger cages for their hens. Then, perhaps in response to the perceived negative effect on the in-state industry, which would face higher costs, the California legislature passed a separate measure that imposed a similar requirement on eggs sold in California by out-of-state producers.
The plaintiffs focus their claim on the legislature's measure. The way they tell the story, this measure was designed to protect California producers from the harm of competition with out-of-state producers (who would have had a cost advantage due to the referendum, which imposed requirements only on domestic producers).
I haven't seen the defendants' arguments, but I can imagine they would argue that the referendum and the statute should be seen as part of a single non-discriminatory government measure.
I'm not sure how U.S. law will deal with this issue. How would WTO law deal with it? My instinct is that the two components of the measure would be considered together. But does it matter that they were passed at different times, by different bodies, with perhaps different rationales? If this turns out to be a crucial distinction, could California start again with a single measure?
Also, in theory at least, we could see a WTO case here. Does Canada or another U.S. trading partner sell eggs in California?
