Clarifying State Action Immunity under the Antitrust Laws: FTC v. Phoebe Putney Health System, Inc.

In Part I of this Article, I set forth the current landscape of the state action doctrine. In Part II, I explain the FTC\u27s and the Eleventh Circuit\u27s applications of the doctrine, highlighting the main points of contention that warrant clarification by the United States Supreme Court. I discuss the Court\u27s interpretive options on certiorari in Part There, I argue the Court should impose a higher standard than the Eleventh Circuit under the first prong of the test, which asks whether a state has clearly articulated a policy of displacing competition. I also explain a conflict between the FTC and Eleventh Circuit under the second prong of the test, which asks whether private parties acting pursuant to a clearly articulated policy are actively supervised by the state. I explain that both incorrectly interpret the implications of a sham transaction, and I resolve the resulting conflict through the lens of federalism principles and consideration of alternative checks on unnecessarily anticompetitive state action. Finally, in Part IV, I present alternative options that can be taken to ensure the state action doctrine does not lead to the joint destruction of federalism and competition