Why Justice Gorsuch would find Trump's Syria airstrikes unconstitutional

At the time of the founding, according to the leading legal scholars and historians, and under the originalist interpretation of admissible evidence for assessing founding’ intent, “declaring war” meant initiating any form of hostility by any form of proclamation or attack. In this historical context, the Syrian strikes constitute a declaration of “war.” It is this historical context Gorsuch considers paramount in constructing the Constitution. Notably, the originalist view carves out an exception for emergency defense actions. The Syrian strike, though, would not meet the historic definition of such an emergency defense action, as it initiated action to, in the words of the President and his team, “punish” and “send a message” to Syria. Equally, Trump and Tillerson both cited the Treaty on Chemical Weapons as their legal basis for their course of conduct. Aside from the fact that treaty is not self-enforcing and affords no authorization for immediate, imminent military action, enforcing such a treaty is precisely the kind of “punishing” for violations of international law that the Constitution gave to Congress. This is precisely the kind of “initiation” of military conflict and military action the Constitution exclusively gave to the legislative branches. Why did the Constitution do so?

According to legal historians, the reason was fear of one man making all the decisions of life and death when it came to war. The leading intellectual lights of our founding fathers each demanded Congress alone control the initiation of military action: George Washington (our first “commander in chief”); John Adams (our second commander in chief); Thomas Jefferson (our third commander in chief); and a litany of leaders, future Presidents, and founding advocates amongst them. Historians have been unable to locate a single instance in which a prominent member of the Founders believed the President could Constitutionally initiate a war. The reason for this unanimity? The Founders arose in an era of kings, and they witnessed the horrors war visited upon the populace in the era of kings. They were thus determined no one man would ever hold such power again in America.