Deafening Silence as Crisis Unfolded at the Capitol

As the sun set over Washington, D.C., a curfew blanketed the city, a city now holding its breath. A few miles from the Capitol, smoke curled into the sky, the aftermath of a violent day of chaos and fear. Mobs clashed with Capitol police in scenes that seemed torn from the pages of a dystopian novel. The streets once bustling with the hum of daily life were now eerily silent, punctuated only by the sound of boots hitting the pavement. It felt as if the very fabric of our nation was unraveling, the seams bursting under the weight of uncertainty and division.

This was a moment when leadership was more than a title — it was a necessity. And yet, in the midst of this turmoil, the question of command over the DC National Guard loomed large. Who had the authority to act? Who had the power to make the call? And who would answer for the decisions — or the absence of them?

I was recently sent a BYU Law Review article that attempts to answer these questions, arguing for the President’s continued role as Commander-in-Chief of the DC National Guard. The article delves deeply into the historical and legal precedents that shaped this command structure, but what struck me was not what it said — it was what it failed to say.

A Legacy Built on Injustice

The article devotes considerable attention to the abstract historical justifications for DC’s unique status, but there is a glaring omission: any meaningful discussion of racial injustice. Washington, D.C., as we know it, was born out of a compromise to protect the institution of slavery. When part of the District was retroceded to Virginia, it was not a mere matter of geography — it was a decision shaped by the institution of slavery. The author fails to confront this fact, nor does he acknowledge how the disenfranchisement of DC residents has been maintained, in part, because the District is a minority-majority location. This silence speaks volumes.

The National Guard and Federal Authority

Beyond the historical context, the article misses key aspects of the National Guard command structure. It fails to grasp how state National Guards can be mobilized under federal authority, even over the objections of state governors. This isn’t a theoretical quibble — it’s a real issue that lies at the intersection of state sovereignty and federal control, particularly in moments of national crisis.

The Absence of Orders is Not an Order

Even more troubling is the article’s failure to address the distinction between illegal orders and the absence of orders. The military is bound to disobey unlawful commands, but it cannot act when no orders are given. This nuance is essential, especially when we consider moments of crisis where leadership falters, and decisions are delayed or absent altogether. To overlook this is to misunderstand the very nature of military command.

The Goldwater–Nichols Act and a Critical Misunderstanding

One of the most fundamental errors in the article is its misunderstanding of the Secretary of Defense’s authority under the Goldwater–Nichols Act. The Secretary does not have the unilateral power to mobilize the DC National Guard without the explicit approval of the President. This legal boundary is critical, especially when examining the actions of individuals like Christopher Miller, whose decisions during the turmoil in DC raised serious questions about whether the chain of command was properly followed. The article sidesteps this entirely, leaving one of the most pressing issues unaddressed.

The Unanswered Question

The larger issue that remains unresolved is whether Christopher Miller acted without the President’s approval. This question cuts to the heart of what it means to have a clear, constitutional chain of command, and yet, it is conspicuously absent from the article’s analysis. In moments like the ones we witnessed during that turbulent time in DC, clarity of command is not just important — it is the difference between order and chaos.

A Perspective That May Have Changed

It’s worth noting that this article was published two years ago. The author, now a Marine Corps JAG Officer, was commissioned earlier this year, and perhaps after attending JAG School, his perspective has evolved. But the issues raised in the article remain crucial for understanding the complexities of the National Guard’s command structure and the delicate balance of federal and state authority.

As we reflect on those days when our nation seemed to teeter on the edge, it becomes all the more important to critically examine the structures that govern us. We cannot afford to be silent on the hard truths, nor can we ignore the lessons history continues to teach us.

The 2022 BYU Law Review article by Christopher F. Melling can be found here:

https://digitalcommons.law.byu.edu/lawreview/vol47/iss2/11/