Mad Money

Should Obama invoke 14th amendment?

Depending on how the constitution is interpreted, the whole debt debacle could be a moot issue for markets.

That is, a somewhat obscure provision in the 14th amendment may allow the President of the United States to increase the amount of debt no matter what Congress says or does.

Although the entire amendment is complex, the phrase that matters follows. It says, "The validity of the public debt of the United States authorized by law, including debts incurred for payments of pensions and bounties for services in suppressing insurrection or rebellion shall not be questioned." You strip out the notion of insurrection as this was written post the Civil War, and you have a pretty good constitutional case."

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The language suggests the president may have the power to increase the debt unilaterally with checks and balances coming from the court system and not Congress.

Invoking the 14th amendment would seem like a no-brainer, except for one thing – President Obama has consistently said he doesn't want to go down that road.

Part of the issue is that the phrase outlined above is subject to interpretation.

"I have talked to my lawyers," Mr. Obama said back in 2011 when the issue first surfaced. "They are not persuaded that that is a winning argument."

Nonetheless, former President Bill Clinton advocated invoking this privilege at that time. Clinton said he would unilaterally invoke it "without hesitation" to raise the debt ceiling, "and force the courts to stop me."

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Cramer thinks it may be worth considering now, especially, since the 14th amendment may save the nation from what many pros consider an absolute catastrophe – a debt default.

"There are people in Congress who want to stop the President so badly that they will contest almost anything," Cramer said. If a showdown is looming anyway is pleading the 14th amendment as a way to pay the bills really that bad? "I don't think so."

Call Cramer: 1-800-743-CNBC

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