There is one problem here. President Bush signed this legislation. IF it is determined to be unconstitutional, and early on, he basically said it was, did he violate his oath of office by signing it?
I don't think he violated his oath of office. They made a few changes and then ran it through justice. The president only needs to believe it's constitutional.
In any case, the congress is required also to present constitutional bills, and the standard there is also simply that they do their best to get it right.
That's one reason there's a Scotus.