What authority does the Vice President have to mobilize the National Guard?

Question

After the attack on the US Capitol by pro-Trump groups, the DC National Guard was eventually called in to restore order. Strangely, it is being reported that Vice President Mike Pence was the one who approved the orders, not President Trump:

Defense and administration officials said it was Vice President Mike Pence, not President Trump, who approved the order to deploy the D.C. National Guard. It was unclear why the president, who incited his supporters to storm the Capitol and who is still the commander in chief, did not give the order. President Trump initially rebuffed and resisted requests to mobilize the National Guard, according to a person with knowledge of the events. It required intervention from the White House counsel, Pat Cipollone, among other officials, the person familiar with the events said.

Mr. Miller [the acting defense secretary] said on Wednesday afternoon that he had spoken with Mr. Pence, Speaker Nancy Pelosi, Senators Mitch McConnell and Chuck Schumer, and Representative Steny H. Hoyer of Maryland about the situation at the Capitol. He notably did not mention Mr. Trump in his statement.

Since, so far as anyone knows, President Trump has not been incapacitated or removed from office, how was the Vice President able to command the National Guard, without approval from the President?

Answer 1

What authority does the Vice President have to mobilize the National Guard?

Apparently, none. However, the acting defense secretary does.

Because the District is not a state, the D.C. Guard answers to the president, but he has delegated authority to command the capital’s guardsmen to Miller and McCarthy — two of the top officials at the Pentagon. — Bennington Banner also Washington Post (paywall)

Statement by Acting Secretary Miller on Full Activation of D.C. National Guard, January 6, 2021

Chairman Milley and I just spoke separately with the Vice President and with Speaker Pelosi, Leader McConnell, Senator Schumer and Representative Hoyer about the situation at the U.S. Capitol. We have fully activated the D.C. National Guard to assist federal and local law enforcement as they work to peacefully address the situation. We are prepared to provide additional support as necessary and appropriate as requested by local authorities. Our people are sworn to defend the constitution and our democratic form of government and they will act accordingly.

[Chairman Milley refers to U.S Army General Mark Milley, Chairman of the Joint Chiefs of Staff.]

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From the January 7, 2021, New York Times newsletter —

Trump initially rebuffed requests to send the National Guard to the Capitol. Pence eventually approved the order.

Answer 2

Mr. Miller [the acting defense secretary] said on Wednesday afternoon that he had spoken with Mr. Pence, Speaker Nancy Pelosi, Senators Mitch McConnell and Chuck Schumer, and Representative Steny H. Hoyer of Maryland about the situation at the Capitol. He notably did not mention Mr. Trump in his statement.

Since, so far as anyone knows, President Trump has not been incapacitated or removed from office, how was the Vice President able to command the National Guard, without approval from the President?

The people listed are the leaders of congress. The vice president is included because of his role in the legislative branch, not his executive role. The authority for mobilizing the national guard rests with the secretary of defense, as explained elsewhere, because it has been delegated to him by the president. But the secretary of defense should not send the national guard to the capitol except at the invitation of congress. (Even if there is no law or formal policy forbidding it, it would be a bad political move to do it.)

Even more significant than the vice president's role as president of the senate is his role as presiding officer of the joint session whose business was being interrupted. In that role, it is his duty to have any interruptions addressed so the session can continue. Therefore the primary responsibility for authorizing an outside force to enter the capitol and assist in that effort lies with him.

Rick Smith's answer quotes the New York Times:

Trump initially rebuffed requests to send the National Guard to the Capitol. Pence eventually approved the order.

It appears that the reporters misunderstood the nature of the vice president's involvement.

Answer 3

For a bit of background WaPo relates how the request was made. It sorta came from Sund, the Capitol Police chief (who has resigned since then) but oddly only after someone (unnamed) DC official suggested it to him. An the Pentagon was initially reluctant to approve it. Note that this refers to sending the guard to the Capitol itself (where Sund had command), not to surrounding DC areas:

The Capitol Police, the law enforcement force that reports to Congress and protects the House and Senate, hadn’t requested help from the Guard ahead of Wednesday’s events. But early Wednesday afternoon, its chief made an urgent plea for backup from 200 troops during a call with top Pentagon and city officials, according to officials familiar with the call.

On the call, Capitol Police Chief Steven A. Sund was asked whether he wanted help from the National Guard. “There was a pause,” one of the D.C. officials said. And Sund said yes. “Then there was another pause, and an official from the [office of the] secretary of the Army said that wasn’t going to be possible.”

Mayor Muriel E. Bowser (D) confirmed that account in an interview with The Washington Post, saying Capitol Police “made it perfectly clear that they needed extraordinary help, including the National Guard. There was some concern from the Army of what it would look like to have armed military personnel on the grounds of the Capitol.” One concern was whether the Army had been invited by Congress.

A U.S. defense official said the Army general on the call didn’t formally deny the request but rather reinforced the negative optics of having uniformed personnel inside the Capitol, a point on which Bowser had agreed, and later checked with the chain of command. The defense official said Bowser agreed that if further support was necessary, D.C. police would provide it inside the Capitol, and the Guard would backfill D.C. police positions away from the building.

The defense official said the military wanted to be the force of last resort, and that military officials had urged Bowser to request more support from federal law enforcement but that she didn’t do so until Wednesday.

Higher-up leaders at the Pentagon then evaluated the request and activated the full D.C. Guard, in addition to later calling the governors of other states to send their Guard forces as reinforcements. The officials also lifted limits on the Guard for the new mission, arming guardsmen with riot gear, but not guns, before they headed to create a perimeter around the Capitol.

Alas the WaPo story doesn't detail how the decisions in the Pentagon were made (although the accepted answer deals with that.)

However the story above may explain why the Army discussed the matter with Pence (formally the Senate President) and the other leadership of the two Houses, as they were seemingly very reluctant to appear to go into Congress only at the request of a police chief.

Answer 4

Sometimes it's about politics.

In the military if a soldier is given an order by an officer higher up the chain of command, then they do it. They don't usually ask if the officer is authorized to give the order. They might if they think the order is both wrong and unauthorized, but not usually. If the order turns out to be illegal it's the higher officer's fault.

Likewise if the National Guard is told by the Vice President to mobilize, they can choose to assume that the VP has been given authority to make that decision. If that turns out not to be the case they can reasonably blame the VP for giving an unauthorized order.

If the order had been something controversial or dangerous the recipient of the order would make more certain that the order was authorized, but in the current situation carrying out an order that was obviously the right thing to do (even if not technically backed up by an order from a lame duck, possibly delusional, President who seems bent on overthrowing the democratic processes of the country and has only a few days left in office) everybody concerned knows that they are not going to be punished.

So the VP gives the order, and the other people concerned choose to assume he has done so with the President's authority, the right thing is done and everybody is happy.

Answer 5

None. Absolutely none.

Anyone reporting otherwise is either ignorant or using artistic license in their reporting. (Either way, I think it speaks poorly of their reporting.)

Other than a State Governor (which isn't applicable for D.C.), there are only two people who can activated the National Guard: the President and the Secretary of Defense.

Support of operations or missions undertaken by the member’s unit at the request of the President or Secretary of Defense.

Title 32 U.S.C. https://www.law.cornell.edu/uscode/text/32/502

Note that Secretaries, including Sec Def, report directly to the President.

Overall, the Vice President has zero authority over the Armed Forces, including the National Guard. His formal authority in these matters is the same as the Speaker of the House or the Secretary of Education, that is to say, none.

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Rather, more careful reporting indicates that VP Pence's role was in an advisory or facilitating capacity:

Trump, who has proven over the past year to be eager to deploy the National Guard when violence breaks out, initially resisted doing so on Capitol Hill Wednesday as a mob of his supporters breached the building, per a source familiar. Pence played a key role in coordinating with the Pentagon about deploying them, and urged them to move faster than they were.

https://www.cnn.com/2021/01/06/politics/pence-national-guard/index.html

The actual order was issued by either President Trump or Trump's recently appointed Acting Secretary of Defense Christopher Miller. No one else that could have given the order for the D.C. National Guard.