It's pretty easy to make a compelling argument.
The 14th Amendment was intended to address the citizenship status of freed slaves and their descendants post-Civil War. It was not meant to apply to the children of immigrants, particularly those who were not legally present or had not pledged allegiance to the U.S.
A stricter interpretation of "subject to the jurisdiction." means it should require complete, exclusive allegiance to the U.S., which might not apply to children of undocumented immigrants due to their parents' legal status or nationality.
You could also argue that the current interpretation dilutes national sovereignty by automatically bestowing citizenship without a clear reciprocal pledge of allegiance from the parents.
The fact that children of diplomats do not automatically gain citizenship due to not being "subject to the jurisdiction" in the fullest sense could be expanded to include children of undocumented immigrants, arguing that these parents, too, are outside full U.S. jurisdiction.
Finally, United States v. Wong Kim Ark was decided under different circumstances. The socio-political context has changed. This could be used to justify revisiting the original interpretation.
Wong Kim Ark doesn’t answer the question, because it doesn’t even try to interpret the term. Instead it assumes that the framers of the 14th amendment meant to incorporate English common law of citizenship. Maybe that’s true, but that’s not what the Court thought the term meant in the Slaughterhouse Cases two decades before that.
Justice Harlan also had a well reasoned dissent in that case, noting that English common law on citizenship arose out of feudalism and wasn’t necessarily an appropriate source on the question.
I think it’s unlikely this will get overturned, but it’s not a frivolous argument.
Regardless, I wouldn’t call an argument supported by clear dicta in one Supreme Court case and a solid dissent in another “frivolous.” But I’d put the odds of the Supreme Court ruling in Trump’s favor substantially below 10%. You lose 100% of the shots you don’t take, though.
"It is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court* is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated."
* The question in Slaughterhouse cases being on the topic of whether the 14th Amendment automatically subsumed the legislative authority of states in important respects, rather than the eligibility of children of foreign nationals for US citizenship.
If you want some more examples:
Voting, Jury Service, Employment Authorization, and Driver's licenses.
In practice, immigrants aren't conscripted during a draft.
We haven't had a draft since the 1970s. It's unclear how many draftees were immigrants back then (and the legal definitions around immigration have changed in the meantime) but historically conscription of immigrants has been the norm, not the exception.
Voting, Jury Service, Employment Authorization, and Driver's licenses.
These seem like things from which undocumented immigrants are excluded (by law!), not immunized. Why you think this is an argument in favor of your legal theory is beyond me.
My argument is that the phrase "and subject to the jurisdiction thereof" may be interpreted to mean that individuals must be under the complete, allegiance-owing jurisdiction of the United States, and because they may not be for a host of reasons, the SCOTUS may reevaluate US v Wong Kim Ark and reinterpret the 14th amendment.
There's also this 1866 Congressional document discussing the 14th after it was passed detailing "and subject to the jurisdiction thereof". It reads "This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of embassadors or foreign ministers accredited to the Government of the United States, but it will include every other class of persons." https://x.com/pepesgrandma/status/1057514062899277824/photo/...
There's a very strong case here.
[1] https://calawyers.org/publications/taxation/ca-tax-lawyer-ma...
This would imply that neither jus soli nor jus sanguinis citizenship would be applied to the children of US citizens who hold dual citizenship, that wouldn't fly at all, given that it would leave such folks entirely stateless.
> The socio-political context has changed.
This does not matter to a textualist reading of the constitution, which the majority of members of the current court claim to apply.
> The fact that children of diplomats do not automatically gain citizenship due to not being "subject to the jurisdiction" in the fullest sense could be expanded to include children of undocumented immigrants, arguing that these parents, too, are outside full U.S. jurisdiction.
The counter to this is that undocumented immigrants would be totally outside of the jurisdiction of any US legal enforcement except for deportation. The local police cannot arrest or detain someone who is outside of their jurisdiction. If a parent is outside of the US jurisdiction, they have some equivalent of diplomatic immunity. You can't say "you're under jurisdiction of the US for law enforcement purposes, but not for immigration purposes".