The President should simply have vetoed the law. I don’t see how signing the law can be consistent with the President’s duty to uphold the Constitution (if the President is convinced the law is unconstitutional). (See Saikrishna Prakash: Why the President Must Veto Unconstitutional Laws). That seems particularly true when the unconstitutional provision is a standalone (as I believe it was here). It might be a different situation if Congress included an unconstitutional provision in a complex bill also containing many sections that the President believed to be constitutional and beneficial. Also, perhaps it would be different if the Supreme Court had said that similar laws are in fact constitutional (though I doubt it). But in the standalone circumstance, I see no textualist/originalist (or even pragmatic) justification for failing to veto.
April 22, 2014 at 4:00 PM EDT