Rehnquist, concluded that private litigants could not avoid the bar of state sovereign immunity by manipulating the doctrine of Ex parte Young. No case examining state sovereign immunity had held that states could be required to repay funds that had wrongfully been withheld. In almost all the cases that had permitted retrospective recovery against the states, the state had not raised the issue of state sovereign immunity. The Supreme Court also overruled any cases in which the state had raised the issue and lost. It distinguished the payment that had been ordered in this case from expenses that a state might incidentally incur after an injunction is issued to comply with it. The costs of post-judgment compliance are ancillary, but the costs of making up for pre-judgment non-compliance were more like an award of damages to the plaintiff. Noting that there were no precedents squarely on this point, the court expressed disapproval of those precedents that hinted at allowing restoration of funds that had been previously withheld. The Supreme Court also brushed aside an alternative theory raised by the Court of Appeals that Illinois had waived its immunity by participating in the federal program. Previous cases finding such a waiver had involved express language in the Congressional statute conditioning program funds on such a waiver, but in the statute, there was no such language. The Court refused to find that participation in the program constituted "constructive consent." It instead declared that consent to waive immunity from suit could be found only "by the most express language or by such overwhelming implications from the text as will leave no room for any other reasonable construction." The majority also rejected Justice Marshall's suggestion that plaintiffs could recover under the civil rights statute, 42 U.S.C. § 1983. It noted had nothing in that statute suggested that Congress had intended to abrogate state sovereign immunity by its passage. Finally, the Court found that it was not improper to consider the state sovereign immunity issue even though the state had not raised it in the trial court since the state sovereign immunity is a jurisdictional bar, which may be raised at any time. Justice Douglas, Justice Brennan, and Justice Marshall each dissented from the opinion of the Court. Dissent of Justice Douglas Justice Douglas asserted that there should be no distinction made between prospective relief and retrospective relief, as the drain on the state's treasury